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

1. 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.

2. 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.

3. 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 Passports bearing numbers M5931169, N2017030 and PA5541355, and did so dishonestly. In essence that count contains three offences, however, they have been rolled up into one charge. The charge under the Australian Passports Act2005 (‘Cth’) (‘Australian Passports Act’), s 35(1), the maximum penalty for the rolled up charge is imprisonment for ten years and/or a fine of 1000 penalty units. Each of the three offences rolled up in that charge could have been separately pleaded and have provided for a maximum sentence of imprisonment for 30 years.

4. The matter on the s 166 certificate is that on or about 13 October 2005 he did conceal a material circumstance, for the purpose of or in relation to the Australian Citizenship Act 1948 (Cth) (‘Australian Citizenship Act’), namely that he had been known by any other name and that he had been convicted or found guilty of an offence whether overseas or in Australia. That is an offence contrary to the Australian Citizenship Act, s 50(1)(b), the maximum penalty for which is imprisonment for 12 months.

Facts

Background

5. The agreed facts tell me the following. On 23 July 1988, the offender using the name Bo Tao Chen entered Australia on Chinese passport 851093. This is known as the first Chinese passport. Bo Tao Chen is the offender’s earliest identity used in making applications to Australian authorities. The offender’s first Chinese passport recorded his date of birth as being 27 December 1961 and his place of birth as Heilongjiang in China.

6. On 27 January 1989, the offender lodged an application for a further entry permit to Australia in the name of Bo Tao Chen associated with his first Chinese passport. Between 1988 and 1992, the offender still known as Bo Tao Chen was granted various visas allowing him to remain in Australia on certain conditions. One of those visas was an apparent discretionary visa available to those from China who were or might be affected by civil unrest in China in that era.

7. The offender breached a condition of his visa by leaving Australia on 17 July 1992 to travel to the PRC which was detected when he returned to Australia on 8 December 1992. The offender was refused entry at the border but whilst waiting for his departing flight back to the PRC escaped from the custody of Immigration authorities. The offender was subsequently apprehended by Melbourne Airport security whom he managed to convince that he was a lost taxi driver. After being escorted to a different terminal at Melbourne Airport, the offender managed to “disappear.”

8. On 5 March 1993, the offender was arrested by Victoria Police whilst working illegally as a taxi driver and was charged with certain offences under Victorian law allegedly committed on 27 February 1993 for traffic and assault offences. At that time, the offender was fingerprinted and recorded as Bo Tao Chen by Victoria Police.

9. On 27 July 1993, the offender surrendered himself to Immigration officials and was detained pursuant to the Migration Act at the Maribyrnong Detention Centre in Victoria claiming that he could not find employment. The Department recorded the offender as Bo Tao Chen and photographed him as part of the detention process. He was deported to the PRC on 30 July 1993, some three days after he surrendered himself.

Count 1 Facts

10. On 15 January 1998, the offender was issued with another Chinese passport 143265601 in the name of Qing He Liu. This is known as the second Chinese passport. On 8 February 1998, the offender submitted an application for a Spousal Visa in the name of Qing He Liu. In this application, the offender stated that his date of birth was 20 May 1957 and that his place of birth was Hebei in China. In this application form, the offender made the following false statements:

1. the offender answered ‘No’ to the question as to whether he had been known by any other name; (Q9)

2. the offender answered ‘No’ to the question as to whether he had been ever been removed or deported from any country (including Australia); (Q70)

3. the offender answered ‘No’ to the question as to whether he had previously been to Australia or previously or currently held a visa for travel to Australia; (Q72)

4. the offender declared that the information to the response to question 70 was “true and correct.”

11. He was asked to list all addresses where he had lived in the past ten years. The offender failed to list any residential address in Australia. By contrast in an earlier “Application to remain permanently in Australia” form lodged on 10 January 1990, the offender then known as Bo Tao Chen listed three different residential addresses at which he had lived in Brunswick in Melbourne over the preceding 18 months. The offender made these false statements knowing that answering truthfully to those questions would have jeopardised his visa application.

12. On 3 March 2000, the offender was granted a Partner (Provisional) Visa (subclass 309) based on the information that he had provided.

13. On 22 March 2000, the offender entered Australia using his second Chinese passport on a provisional visa in the name of Qing He Liu. At the time he was in the company of a minor listed as a dependent son, Yi Qi Liu. I must state that during the oral sentencing submissions, this person was referred to as the child that was currently 11 years old but clearly that “child” would now be at least 24 years old. He must have been a child who was much older than the two children mentioned in other documents before me, one aged 11 and another aged five years.

14. On 4 September 2000, the offender was granted a Partner (Migrant) Visa (subclass 100) to reside permanently in Australia. As outlined, his previous identity and subsequent deportation had not been declared by him during the application process.

Section 166 Certificate Offence Facts

15. On 13 October 2005, the offender, using the name Qing He Liu, lodged an application for Australian citizenship. In making that application, the offender concealed material facts by failing to disclose his previous identity. He did that intentionally knowing that disclosing that matter would jeopardise his citizenship application and visa status.

16. On 6 February 2006, the offender was approved to become an Australian citizen by the Department of Immigration and Multicultural Affairs in the name of Qing He Liu.

17. On 19 April 2006, the offender acquired his citizenship at a Conferral Ceremony at the Kogarah Municipal Council Town Hall in the name of Qing He Liu.

Count 2 Facts

18. On 20 April 2006, the offender lodged an Australian Passport Application in the name of Qing He Liu. He obtained Australian Citizenship under false pretences, namely, by concealing his previous identity. By concealing this circumstance, the offender also sought to conceal the fact that he had been deported from Australia on 30 July 1993. It is in this context that the offender furnished an application for an Australian passport using the identity, Qing He Liu. Consequently, on 27 April 2006, the offender dishonestly obtained an Australian Passport M5931169 in the name of Qing He Liu. This is known as the offender’s first Australian passport.

19. On 1 January 2008, the offender travelled out of Australia to China using the first Australian passport. Whilst in China, the offender obtained a Chinese Identity Card in the name of Bo Tao Chen valid from 9 January 2008 until “long term” confirming his continued use of the Bo Tao Chen identity in China. This was located by Australian Border Force officers during the execution of a search warrant at the offender’s residence in 2020.

20. The offender returned to Australia on 1 February 2008 using his first Australian passport.

21. On 14 December 2009, the offender applied for a NSW Change of Name Certificate changing his name from Qing He Liu to Bob Chen. That Change of Name Certificate was issued on 23 December 2009.

22. On 31 December 2009, the offender lodged a further Australian Passport Application in the name of Bob Chen, submitting the NSW Change of Name Certificate as part of the application to do so.

23. On 13 January 2010, the offender dishonestly obtained an Australian Passport N2017030 in the name of “Bob Chen.” This is referred to as the second Australia passport. The second Australian passport was used to leave and re-enter Australia on a number of occasions over the following two years.

24. On 19 December 2016, the offender lodged an Australian Passport Renewal Application in the name of Bob Chen.

25. On 22 December 2016, the offender dishonestly obtained Australian Passport PA5541355 in the name of “Bob Chen.” This is referred to as the third Australian passport. The third Australian passport was used by the offender to leave and re-enter Australia on a number of occasions. Furnishing each application for an Australian passport, in circumstances where the offender did so in furtherance of cultivating his second false identity was dishonest.

Criminal History

26. The offender has a very brief criminal history. He appeared in the Local Court at Newtown on 25 June 2015, charged with an offence committed on 4 June 2015 driving a motor vehicle whilst his licence was suspended. For that offence, he was fined $750 and disqualified from driving for 12 months.

27. On 5 August 2021, the offender was sentenced in this Court by McClintock DCJ for another Commonwealth offence. It was for importing tobacco products with intent to defraud the revenue. The offence was alleged to have been committed between 16 and 20 May 2020. The offender was convicted and sentenced to imprisonment for 21 months to be served by way of an Intensive Correction Order commencing on 5 August 2021 and concluding on 4 May 2023. That ICO included 200 hours of community service and required the offender to participate in a program to address a gambling problem.

28. The current Sentencing Assessment Report (‘SAR’) makes no adverse comment about the offender’s response to the ICO imposed by McClintock DCJ.

Caution Called For

29. One should note from the facts that the offences against the law of the Commonwealth all related or involved not only dishonesty but also mendacity, repeated lies for purposes of the offender’s own benefit. To the extent the Court is hamstrung because there is no sworn evidence to prove for example the history given by the offender to a psychologist who interviewed him with the assistance of an interpreter for two hours and 15 minutes on 26 June this year. Nor, for example, is there sworn evidence to corroborate what he told the Community Corrections officer Mr Lex Buko who interviewed him on 30 August this year.

30. I, of course, do not know which date of birth given by the offender is correct or what was his original name. I suspect from the evidence that I have seen that it is likely to be Bo Tao Chen and he has most recently changed his name by deed poll to Bob Chen corroborated by the fact that he now has a son who carries the surname Chen, the name which the offender indicated was the name of his father when he was interviewed by the psychologist.

31. It is likely then that the offender’s date of birth is that initially carried by the gentleman from China who made the original application to stay in Australia on 23 July 1988 of Bo Tao Chen who provided the “first Chinese passport” to the Commonwealth authorities at that time.

Objective Seriousness

32. I have to assess the objective gravity of these offences. It is instructive therefore to consider some of the authorities. In Pinkstone v R (unreported, WASC, 24 August 2000), Pigeon J said this:

“The reliability of the passport system 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.

Whilst those comments were made in respect of the passport system, the Crown correctly submits that they apply with equal force to the visa system.”

33. In Grahame v Singh [2010] SASC 306, Doyle CJ made the following observations about the seriousness of crimes undermining the passport system:

“22 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.

23 Other countries rely on a 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.

24 Further, passports allow for the movement of people across international borders. 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 as 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 sort of conduct they will be punished.”

34. The Crown has submitted that each of the offences is a very serious example of dishonesty involved in applying to enter this country. The Crown has submitted that the offending represents a course of conduct whereby the offender repeatedly deceived Australian authorities over a period of 18 years to be able to enter and remain in Australia when he had previously been removed.

35. The fact that offences formed a course of conduct is a consideration to be taken into account under the Crimes Act, 1914 (Cth) s 16A(2)(c). The Crown has also submitted that the conduct in Count 1 and the s 166 offence relating respectively to the offender’s application to migrate to Australia and his citizenship application can properly be characterised as one of the more serious examples of offending contemplated by the relevant offence provisions. That is because falsehoods involved in each case go to the offender’s own identity and his entitlement to be in Australia at all.

36. The Crown has submitted that it can be inferred that the offender acted deliberately and knew that the information that he was intentionally withholding was significant and that it was likely to affect whether he would be allowed to enter Australia (for Count 1) and obtain citizenship (the s 166 offence).

37. The Crown has also submitted that the fact that the offender obtained a new Chinese passport in the name used on his application to migrate before submitting it points to a significant degree of planning and premeditation. How he managed to obtain the second Chinese passport in the name of another person with another date of birth and another place of residence is of interest but clearly shows an ability to manipulate the public records of that country.

38. The Crown has submitted that the offending referred to in Count 2 is best characterised as ongoing perpetuation of the initial deception. That the offender is entitled to obtain a passport arose from his citizenship. The fact that there are three instances of criminality combined in a single charge increases its objective seriousness as does the lengthy period of time over which those three incidents occurred. However, that latter statement is probably of little moment because passports are generally issued for lengthy periods of time.

39. As will become clear when I go on to discuss the offender’s personal circumstances, it is unlikely any longer that the offender need be personally deterred from doing what he has done in the past. However, general deterrence is a key sentencing consideration for each of the offences currently before me.

40. The ability of people to migrate to Australia and the character of those who might migrate to Australia are very important at all times but especially at times where there are difficulties in certain overseas countries which would cause people to make applications for visas and for admission to Australia.

41. The community generally relies on the integrity of our migration and visa system, as the authorities which I quoted earlier attest, is more so when there are troubled times overseas.

42. It is true as has been submitted by the defence that there is no evidence that the offender made these false statements to come to Australia for any particularly nefarious purpose such as joining an outlaw motorcycle gang or criminal purpose of any sort but there are obvious advantages for some people in coming to Australia even if it only be the social security system and institutions such as Medicare. There are some people who might come to Australia expecting a better life or a better education or freedom from a totalitarian government. Not all purposes that motivate people to make misrepresentations to the Commonwealth seeking admission to the Commonwealth are nefarious but these things are often done for ulterior motives and what the current offender’s motive really was, I do not know because he has not given any evidence. I accede therefore to the submissions put to me by the Crown as to the relative seriousness of the current offences.

34. As far as Count 1 is concerned I would categorise it as being in the mid‑range of objective seriousness. As far as Count 2 is concerned I would put that as in the low range in objective seriousness because much of it depended upon the offender’s being granted Australian citizenship. As far as the s 166 certificate offence is concerned, I would put that as above the mid-range of objective seriousness because of the consequence that it has had in enabling the offender to commit the offences known as Count 2. Luckily for the offender the maximum penalty for this s 166 certificate offence is only one year’s imprisonment.

Personal Circumstances

44. I turn now to consider the personal circumstances of the offender. They are largely provided by the report of Mr Jason Borkowski, a forensic psychologist of the Psychwest Psychology and Consulting Group. As I mentioned earlier, the offender was interviewed with the assistance of an interpreter over a period of 2 hours and 15 minutes on 26 June 2024.

45. In some respects, the history is not particularly satisfactory because sufficient detail is not given in light of the conflicting identities used by the offender in the past. The psychologist records that the offender was born and grew up in China in what he described as a “city area”. Earlier, I pointed out that I had two locations where he may have been born and grown up. The first was Heilongjiang and the other was in Hebei.

46. The history recorded states that the offender had a satisfactory relationship with his father who was actively involved in his upbringing and to whom the offender said he was very close. The offender said this about his relationship with his mother:

“Mr Chen stated he had “alright” relationship with his mother, but he clarified she had a “quick temper” which he perceived impacted on his ability to develop a maternal bond. Mr Chen said his mother was a “famous singer” in China and he denied any maternal history of alcohol or illicit substance use or criminal behaviour. Mr Chen stated he had always remained in contact with his mother and added that she is still alive and currently resides overseas”.

I assume therefore that his mother is still living in China. The offender’s father is now deceased. The history goes on to record that the parents often quarrelled; that is an aspect of married life that is fairly common throughout the world.

47. The offender has two siblings, both male, who are four and five years younger than him. The offender recorded that he had a reasonably stable relationship with his siblings but pointed out that he left home at a young age and therefore did not spend much time living with his siblings in his later formative years. The offender’s brothers are still alive, and they also reside “overseas” which I assume means they are in China. According to Mr Borkowski’s report the brothers lead stable, mature and responsible lifestyles and he remains in contact with them.

48. The history then tells me this:

“Mr Chen advised he lived with his family until he was approximately 14 years old, when he left home due to an opportunity to enrol at a performing arts school. He stated that after leaving home, he initially lived in dormitory accommodation with other students at the performing arts school. Mr Chen said he subsequently moved into shared accommodation that was also paid for by the performing arts school. Mr Chen said throughout his early adulthood, he travelled frequently as a musician and performer and had accommodation mostly provided by his employer. Mr Chen advised that at any time he has lived in Australia since his early 30s he has lived primarily in private rental accommodation”.

49. The report then discusses the appellant’s social development and there is nothing untoward in that. The appellant denied having any ongoing or close associations with antisocial or substance using peer groups.

50. The report then discusses the relationships that the appellant has had. Unfortunately, the report does not tell me where these relationships were, whether in China or Australia, and whether they were all with other Chinese individuals or whether one or more of the relationships was with a person of another race. The relevant part of the report is this:

“Mr Chen advised that his first serious romantic relationship began when he was in his mid-20s, and it lasted for approximately seven to eight years. He reflected positively on the relationship but said it ended due to differing priorities, goals, and life direction between him and his partner.

Mr Chen reported that he commenced a second serious relationship in his early 30s and he and that partner married. He stated the marriage lasted approximately five or six years but ended due to his partner being unable to conceive a child, which placed strain on their relationship.

Mr Chen reported a third noteworthy relationship lasting approximately 10 years throughout his 40s. He said that that relationship was reasonably stable but he perceived they were more compatible as friends rather than intimate partners. He stated he currently still lives with that person but they are not in a committed or intimate relationship.

Mr Chen stated that in more recent years, he was in a relationship with a younger partner who conceived his child via invitro fertilisation but then would not allow him to have any involvement with the child. Mr Chen advised that the child was 11 years old at the time of the current assessment.

Mr Chen stated that he also has a five year old son who was conceived via invitro fertilisation using a surrogate pregnancy, and he has raised his son as a single parent. Mr Chen stated he is currently not in a relationship but lives with his ex-partner and his son, who was born via surrogate”.

51. The offender’s youngest son is known as Frank Chen. He was born in December 2018 in China, however his birth was registered with Australian authorities in China and Frank came to Australia on his own Australian passport. He is currently in kindergarten at a well-known school at Warrawee.

52. The offender, as I understand, currently is residing in St Ives. That is the address given in a discharge summary from the Northern Beaches Hospital that shows admission to that institution on 13 February 2024. His next of kin is given as “Amanda” who was living at the same address as the offender and who is described in the discharge summary as his “wife”. That is inconsistent with what the offender told the psychologist and may have just been an easy way of describing his former wife with whom he still lives.

53. The report of the psychologist then turns to issue of the offender’s educational and vocational history. That history turns back to the offender’s study as a musician and performer when he was able to enter a performing arts school. It would appear to be an inherited trait of the offender as he described his mother as a “famous singer” and his father as an artist. From this part of the psychologist’s report, it appears that the offender was well‑known in China as a full-time musician and that he had performed traditional Chinese music both in China and internationally. In addition, the offender also worked in China as a film producer. The report then says this:

“Mr Chen advised that since moving to Australia in his early 30s, he was disappointed not to be able to continue working as a performer. He said that he began working as a taxi driver, which he found to be a very contrasting vocation and lifestyle to that which he has previously experienced. Mr Chen stated his employment as a taxi driver was his primary vocation throughout the time he has lived in Australia. He stated he is now retired and considers his “full-time job” to be looking after and raising his son.

Mr Chen further indicated that at several points in his adult life he attempted to open businesses, including a lighting shop and then a gift shop, but both businesses were ultimately unsuccessful. He said that he also did brief periods of work as a kitchen hand and as a bus driver on other occasions.”

54. The report then turns to the offender’s physical and medical history. It would appear that in his mid-20s, that is before he came to Australia, he was diagnosed with hepatitis and was hospitalised for some six months.

55. In 2018, obviously in Australia, he developed heart problems which ended up with his having triple bypass surgery for that condition. Triple bypass surgery is usually practised to right any cardiac problems and after it has been done it may be necessary for a GP to monitor the condition and for an occasional, perhaps annual, visit to a cardiologist to check up that everything remains satisfactory.

56. The report then refers to a recent hospitalisation “for severe stomach pains that included fever, lower back pain and urinary tract infection symptoms”. That refers, I believe, to the discharge summary from the Northern Beaches Hospital which commences with an admission on 13 February 2024. The principal diagnosis was a urinary tract infection on a background of BPH, which is benign prostatic hyperplasia which merely means an enlarged prostate which was not malign, that is, it was not thought to be cancerous. No surgery was practised and, as I understand it, the offender was in hospital for a week. There were a large number of investigations of both the kidneys and the prostate and it would appear, from what I have read from the discharge summary, that the back pain was in fact referred pain from the kidneys because of the kidney infection.

57. As could be expected of a psychologist, he then turned to the offender’s mental health history. It is this:

“Mr Chen denied any history of mental health conditions and denied ever having engaged with mental health professionals such as psychologists, psychiatrists, or other counsellors.

Reflecting on this mental health history, Mr Chen considered himself stable and functional from a mental health perspective throughout his formative years and his early life.

He added however, that in the past he has experienced mild depressive symptom episodes, primarily in response to perceiving he had not lived up to his potential vocationally or professionally. He said he does not feel he has met his own expectations and he expressed feeling disappointed at not having been able to continue in his previous profession in the performing arts industry. He said that he instead had to engage in less rewarding work, such as driving a taxi, as his primary vocation.

In further elaborating, Mr Chen said he was ‘quite famous’ in his early adult life, and he reported he worked with other famous artists in his field. Mr Chen said that as a result that he feels like he ‘could have done better in life’ and that his previous experience working as a performing artist was the highlight of his life. Mr Chen said that not being able to continue caused him to experience depletion of self-worth and self-esteem. He further explained that when he was in his early 20’s, he was in ‘elite company’ and ‘financially well off’, and due to not being able to continue in his profession, he feels disappointed in himself.

Moreover, Mr Chen said that his response to his current legal circumstances he has experienced symptoms including feelings of helplessness, despair, worry, stress, and rumination.

Mr Chen denied any history of genuine suicidal ideation or attempts to commit suicide or other acts of self-harm. Identified his son as a primary protective factor against any thought or acts of self‑harm or suicidal ideation.”

58. I have had cause to observe over 19 years now that anyone standing for sentence where a lengthy sentence could be imposed and, here the maximum penalty for Count 2 in the indictment is ten years, who was not suffering from stress and anxiety would be abnormal. That the offender currently feels worry, stress and rumination is in my view unremarkable. I perceive that his feelings of helplessness and despair are perhaps because he might not appreciate the way in which the legal system works in Australia.

59. The offender denied to Mr Borkowski any history of illicit substance use and he also said that he seldom drank alcohol because of his past history of liver problems. The offender used to gamble heavily but has been weaned off that habit. I note that the Intensive Corrections Order made by McClintock DCJ on 5 August 2021 required the offender to participate in a program to address his gambling problem and that seems to have borne fruit. The history of a gambling problem is just that, a history rather than a description of any continuing problem.

60. The offender explained this to Mr Borkowski concerning the conviction of importing tobacco products with an intention to defraud the revenue:

“It is noted that in 2020 Mr Chen was convicted of importing tobacco products with the intent to defraud revenue. In explaining that situation, Mr Chen said it occurred during the early stages of the COVID-19 pandemic when he had difficulty earning an income due to lockdowns and social restrictions associated with the pandemic.

...Mr Chen stated his role was to monitor a shipping container where tobacco products were located. Mr Chen said the police found him at the shipping container, and he was subsequently charged.”

61. As to the current offending Mr Borkowski took this history:

“In contextualising the current offences Mr Chen provided the following background. He stated he first travelled to Australia with his partner in 1988, initially to study English. He said that in 1989, as a result of civil unrest and the Tiananmen Square protests in China the Australian government granted a five year visa to Chinese nationals to remain in Australia.

Mr Chen said, however, that he wanted to go back to China so he could recommence his professional work at that time. Mr Chen said he returned to China but then wanted to return to Australia again as he was missing his partner at the time.

Mr Chen said he was disallowed entry due to visa rules at the time. Mr Chen said he got to Australia, but immigration would not allow him in and detained him, but he left the location. Mr Chen said he then stayed with his girlfriend, but after approximately six months, they separated, and he turned himself in to immigration.

Mr Chen subsequently returned to China again, where he met [his] second significant partner and they married. He [stated] after marrying, his wife wanted to travel to Australia. Mr Chen acknowledged that he knew he needed to change his name to return to Australia at that time. Mr Chen said that after being in Australia for a number of years, he changed his name again. He said he wanted to return to having the name Chen as it was motivated by him wanting to return to having his father’s surname.

Mr Chen said if he had not met his wife in China before coming to Australia, he probably would never have returned or tried to come back to Australia.

In reflecting on his behaviours, Mr Chen stated, ‘I will take responsibility for my mistakes without question,’ and he is willing to accept any applicable consequences. However, he expressed concerns about the possible consequences, particularly deportation or gaol. He said his primary concern is about his son’s well-being. Mr Chen said he is unsure how his son would cope if he was unavailable to care for him. He said he was also unsure how his son would adjust living in China if he were to be deported. He said, ‘I don’t know how I would survive in China at my age’. He stated that he has no financial backing or secure form of income in China.”

62. I should point out that the offender’s source of income at the moment is the age pension.

Risk of Reoffending

63. Mr Borkowski went on to make an assessment of the risk of general reoffending. He came to the opinion that has also been expressed by Mr Lex Buko, the Community Corrections officer who compiled the SAR that the offender had a low risk of reoffending according to the Level of Service Inventory-Revised (LSI-R).

Diagnosis

64. Mr Borkowski went on to state this:

“Based on Mr Chen’s self-report, his presentation during interview, and the information available to me in the preparation of this report, is diagnosed with the following:

- Major Depressive Disorder-Mild.

- Adjustment Disorder, with mixed anxiety and depressed moods.”

65. I find it difficult to see how the offender could be diagnosed with a major depressive disorder which is chemically regulated. One can have episodes of a major depressive disorder throughout one’s life. The history taken by Mr Borkowski does not show any such pattern. The offender may well be suffering from an adjustment disorder which by definition is a reaction to a stressor in one’s life that is usually transient and the offender’s symptoms resulting from his concern, worry and stress about the sentencing process may have well caused a mild adjustment disorder with mixed anxiety and depressed mood.

66. The psychologist then goes on to suggest a mental health treatment plan but that is very common for psychologists to recommend because it requires psychological intervention over a lengthy period of time and at great cost to the community or the patient and of some moment for psychologists themselves.

67. I feel confident after reading Mr Borkowski’s report that it is likely that once the sentencing procedure is over that the offender may no longer worry as much as he must be worrying now. I accept that the risk of re-offending is low. The prospects of rehabilitation therefore are high. Essentially these are historical offences which are not likely to recur. The offender is now an Australian citizen, has lived here for a substantial period of time. His son, who he is parenting himself is an Australian citizen and is growing up in Australia from an early age. Everything points to the offender living out the rest of his life in Australia, although he may wish to travel home again if his elderly mother becomes ill or there are prospects of her decease. Equally, the same would apply to his brothers in China.

68. The prospects of his being deported at the current time appear to me to be extremely unlikely. It would require the executive Government of the Commonwealth to rescind his citizenship and then to actively deport him. It is common knowledge at the moment that the executive Government of the Commonwealth has some problems with issues such as that at the moment and there is greater call for others to be dealt with than with the current offender.

Remorse

69. Another question is whether the offender is truly remorseful. Of course, I could be more confident in the remorse and regret that he expressed in his letter to me of 22 August 2024, which is Exhibit 3. In that he said this:

“I am very sorry that I have misled and deceived the authorities. Australia is a country that I love and respect very much and I know that the strict laws exist here for a very good reason. I accept that I broke the law and I am very sorry. I will never do anything of this nature again.”

70. I am prepared however to accept that that statement is truthful, because if it were not, there would be no good reason for him to have his son made an Australian citizen and to bring him here and to commence his education here. Furthermore, that is confirmed by the worries he expressed to the psychologist as to what could occur if for example, he were deported or gaoled and what might become of his son.

71. The SAR tells me that the offender admitted to Mr Buko that his actions were wrong and illegal, that he was willing and able to undertake intervention if required. That he is willing and able to undertake Community Service Work and Mr Buko pointed out that he completed satisfactorily the earlier ICO. According to the SAR, the offender would not be required to participate in face to face reporting with a Community Corrections officer unless there is some automatic notification that requires that they intervene. Community Corrections considers that no conditions other than supervision conditions are required to implement the supervision plan that they have. But they also assess the offender as suitable to undertake Community Service Work for 12 hours per month.

Consideration

72. The Crown has submitted that the threshold in s 17A of the Crimes Act 1914 (Cth), has been crossed in respect of each of the charges and that the only appropriate penalty is full time imprisonment. In that regard, the written submissions prepared by Mr Smith SC and Mr Parsons of Counsel state this:

“17. The Court may only impose a sentence of imprisonment if it is satisfied that it is the only appropriate sentence: s 17A Crimes Act 1914 (Cth).

18. Given the nature and circumstances in which the offence was committed and the almost 20 year delay between Count 2 and the present, the offender submits that general deterrence and specific deterrence should feature in the sentence imposed but not overwhelm or dominate the process and should be tempered with the subjective circumstances of his case. And in particular, the offender’s limited criminal history and plea of guilty and good prospects of rehabilitation. The offender has demonstrated his ability and willingness to comply with a community based prison sentence having previously been sentenced to an intensive corrections order.”

73. In Chan v R [2023] NSWCCA 206, N Adams J with whom Kirk JA and Rothman J agreed, said this beginning at [99]:

“Putting the ICO regime to one side, it is clear that s 3A of the [Crimes (Sentence Procedure) Act 1999], is not otherwise picked up and applied as federal law: s 16A(2) of the Crimes Act already provides for mandatory factors similar to those in s 3A. Despite this, s 66(3) of the Sentencing Act required the sentencing judge to have regard to s 3A when considering whether to impose an ICO, even though her Honour was also required to have regard to s 16A for the purpose of the first two steps.”

100.   The Crown did not contend that only part of s 66 of the Sentencing Act (that is, everything except for the reference to s 3A) was picked up and applied as federal law in this matter. Rather, the Crown’s position was that when considering whether to impose an ICO, s 66(3) of the Sentencing Actrequires the court to have regard to the purposes of sentencing in s 3A of that Act, even when sentencing a federal offender. This position is consistent with Stanley and the language of s 66: there are mandatory considerations in s 66 of the Sentencing Act, one of which is that the sentencing judge must have regard to the s 3A factors (s 66(3)). In circumstances where the statutory language of s 66(3) is clear and neither party suggested that s 66(3) should somehow be read subject to s 16A, I am prepared to proceed on the basis that the sentencing judge was required to have regard to s 16A of the Crimes Act for the purposes of the first two steps: determining whether a sentence of imprisonment is required, and if so the length of that term, but then have regard to s 3A when considering whether to impose an ICO.

101.   Although the Crown accepted that the trial judge was required to have regard to s 3A for the purposes of 66(3), it was not conceded that this ground should be upheld. It was contended that the fact that her Honour had regard to sentencing principles analogous to those found in s 3A earlier in her decision when she determined to impose a term of imprisonment of 2 years (the first two steps) supports the conclusion that she had regard to them again for the purposes of s 66(3). I cannot accept that submission. As the majority reasons in Stanley observed at [77], although the general purposes of sentencing will have been considered in deciding whether to impose a sentence of imprisonment, community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. It is implicit in this passage of the majority reasons that the general principles of sentencing must also be looked at again at this third stage for the purposes of s 66(3), but with a different focus.”

74. I turn now to each of the offences. I shall deal firstly with the offence that is contained on the certificate under s 166. The maximum penalty for that offence is imprisonment for one year. Earlier, I pointed out that, in my view, considering the nature of the untruthfulness in the offender’s application for citizenship, that the untruthfulness was above the mid-range of objective seriousness. I have come to the view that the appropriate sentence for that offence is imprisonment for eight months.

75. However, the offender has pleaded guilty. The plea of guilty was late. The offender clearly is not entitled to the maximum available discount under either New South Wales law or although no discount is fixed under federal law, often this Court approaches the matter in a similar way. It has been submitted by the offender that the discount should be 15% of the appropriate sentence and the Crown did not wish to be heard on that issue. If I discount eight months by 15% and round it down, as I must, in favour of the offender, the sentence becomes six months imprisonment.

76. For Count 1, I have determined the matter to be in the mid-range of objective seriousness. The maximum penalty is two years imprisonment. I start with a head sentence of one year’s imprisonment which I discount also by 15% and rounding that down in favour of the offender gives me a sentence of ten months imprisonment.

77. As to Count 2, considering the passage of time and the fact that the offending flows essentially as a result of the offender using his Australian citizenship to obtain Australian passports, I believe that the appropriate starting point is a sentence of three years imprisonment. Discounting that by 15% and rounding it down in favour of the offender, that becomes a sentence of imprisonment for two years and six months.

78. The total of all those sentences is three years and ten months. This will not be an aggregate sentence because I am persuaded that it would be inopportune to impose an aggregate sentence because the matter is currently reserved by the Court of Criminal Appeal. As I pointed out in R v Campbell [2024] NSWDC 413, a decision made on 16 August this year, that still remains the case. The Crown was good enough to tell me yesterday that the matter was called Macgregor, and was reserved in May of this year.

79. However, a similar result can be obtained by making the individual sentences partially concurrent. I have taken the view that the head sentence should be three years. That requires me then to consider whether to impose a sentence of imprisonment with a release on recognisance order after a period of either two years or two years and three months in prison or to impose an ICO.

80. I have decided that I should impose an Intensive Correction Order for a reason clearly permitted by s 16A(2)(p) of the Crimes Act 1914 (Cth):

“The probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”

81. The only family or dependants that the offender has in Australia are his five-year-old son Frank. Frank is currently in kindergarten, as I have already pointed out. I am not aware of any other relatives that Frank has who might be in this country, other than the son who is said in the psychologist’s report to be 11 years old and would hardly be in a position, even if that child’s mother permitted him to have contact with his half-sibling Frank, any role to play in his care and supervision and upbringing. There might be another half-sibling who would have to be at least 25 years old or more that such a sibling, as I understand it, is not one who has had any part to play in the offender’s life in recent times and clearly may not even have knowledge of another half-sibling who is now only five, and would himself, unless married with his own children, be unwilling and unsuitable to take on a five-year-old boy.

82. In other words, if the offender be imprisoned, the boy will be left stranded in Australia, an Australian citizen, and it would be left for him to be looked after by “Amanda” if that is the name of the offender’s former wife and now mere housemate. I have nothing from her to indicate that she would be willing to undertake the care and development of the child. Furthermore, the child’s upbringing itself needs the presence of his only parent. The boy is of an impressionable age. The impressionable age is essentially between the ages of seven and 16. Imprisonment would interfere substantially with that, and one cannot foresee what might happen to the child if the offender were imprisoned.

83. The interpretation to be given to s 16A(2)(p) has changed recently since the decision of the Court of Appeal in Totaan v R [2022] NSWCCA 75. A decision of a five-judge Court of Criminal Appeal, the major judgment essentially was given by Bell CJ and Gleeson JA and Harrison, Adamson and Dhanji JJ, each agreed with the Chief Justice. The pith of that authority can be found at [77] where his Honour said this:

“In my view, decisions such as Sinclair and Hinton, holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances are of hardship satisfy the exceptional are, “plainly wrong” and should not be followed. Acknowledging and concurring with the compelling reasons of Beech-Jones J in Zerafa, augmented by the observations of Basten JA in Pratten, my reasons for reaching that conclusion are as follows...”

The paragraphs in which the Chief Justice gives his reasons then follow in [78] to [91].

84. However, in this case even if the hardship need be exceptional, the hardship that might befall Frank would be exceptional.

85. Bob Chen, on each of the charges contained in the indictment presented on 8 March 2024 and on the charge contained in the certificate under s 166 of the Criminal Procedure Act, you are convicted.

86. [His Honour went on to make certain orders not calling for report. On 12 November 2024, on application by the Crown, those orders were set aside and the following orders were made by consent.]

87. By consent I set aside the sentences and orders made on 27 September 2024. In lieu thereof, I impose an aggregate sentence of imprisonment of three years to be served by way of intensive correction in the community. Terms of the order are:

1. You must not commit any offence.

2. You must submit to supervision by a community corrections officer.

3. You must complete community service for 400 hours.

4. You must participate in any rehabilitation or treatment program, as directed by Community Corrections.

5. You are to report to the Community Corrections office at Hornsby by telephone within seven days.

88. The indicative sentences are:

1. The matter on the s 166 Certificate, six months.

2. Count 1, ten months.

3. Count 2, two years and six months.

**********

Decision last updated: 15 July 2025