R v Thomas
[2008] VSC 620
•29 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1458 of 2005
| THE QUEEN |
| v |
| JOSEPH TERRENCE THOMAS |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2008 | |
DATE OF SENTENCE: | 29 October 2008 | |
CASE MAY BE CITED AS: | R v Thomas | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 620 | |
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Catchwords: Criminal law sentence – Possess falsified Australia Passport – Recognizance Release Order – S9A(1)(e) Passports Act 1938.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Robinson S.C. with Ms L. Taylor | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Kennan S.C. with Mr P. Doyle | James Dowsley & Associates |
HER HONOUR:
Joseph Terrence Thomas, you have been found guilty by jury verdict of possessing a falsified Australian passport. No prior convictions are alleged against you.
In March 2001, you flew to Pakistan in order to go to Afghanistan to fight on the side of the Taliban, who were then engaged in a civil war with the Northern Alliance. At the time, the Taliban was the lawful Government of Afghanistan and there was nothing illegal about your going there.
You obtained a Taliban visa and eventually travelled into Afghanistan and, indeed, spent a week on the front line. After the fall of Kabul, you eventually returned to Pakistan, living in various homes of Taliban sympathizers. You tried to leave Pakistan on three occasions but your departure was thwarted on each occasion; by 9/11, the first of the Bali bombings and an earthquake. By December 2002, you were desperate to get home.
In the context of post 9/11, you regarded the presence of a Taliban visa in your passport as a one‑way ticket to Guantanamo Bay and that anyone found with such a visa would be regarded by Pakistani authorities as a terrorist, so as to avoid these consequences, your passport was altered and a Pakistani visa, which had been legitimately issued out of Cairo on 28 October 2000 was placed over the Taliban visa which was not then observable to the naked eye. Otherwise, the passport bore your name and photo, although the details on the Pakistani visa indicated falsely that you had only been in Pakistan since 12 December 2002.
On 4th January 2003, you presented the passport at the Karachi airport and thus, having identified yourself, you were immediately detained by the authorities.
The maximum penalty for the offence of being in possession of a falsified passport is two years imprisonment. Although the falsification related to the placement of a Pakistani visa, and not to any aspect which would otherwise conceal your true identity, nonetheless, once the Pakistani visa was placed over the Taliban visa, your passport then falsely recorded that you had been in Pakistan for a shorter period than was the fact, and did not reveal that you had travelled to Afghanistan, which was also the fact. Thus, your passport was no longer a truthful, reliable and accurate record and thus the integrity of it had been compromised in significant respects and to a significant degree.
Mr Kennan QC submitted that the offence here committed falls to the lower end of offences of this kind, fashioned by the circumstances you found yourself in and that it was not committed for the purpose of carrying out any illegal activity but rather to facilitate your unimpeded return to Australia.
I accept these matters and place your offending conduct in that context.
The Crown contend, however, that it is open to me to find that the passport was altered by persons associated with al‑Qaida or at least, as you contended, that bin Attash had intervened and highjacked the situation. You maintained in your interview with Ms Neighbour and in conversations with Mr Munro that the alterations to the passport had been handled by persons in whose houses you were staying and that you had rejected the offer to change your photo and identity.
By reason of the jury's verdict in respect of count 1, and consistently with it, I proceed on the basis that it is not established beyond reasonable doubt that al‑Qaida associates provided you with a passport and, accordingly, I accept on the balance of probabilities that the passport was altered through the agencies of persons with whom you were living whom you regarded as Taliban sympathizers.
Accepting these matters as I do, this is, nonetheless, a serious offence and one which considerations of general deterrence and the need to pass a sentence which will act in denunciation of your conduct carries considerable weight. For these reasons, I am satisfied, pursuant to s.17A of the Commonwealth Crimes Act, that no other penalty is appropriate in the circumstances of this case other than a sentence of imprisonment.
You are 35 years old, married and the father of four children. You are described in testimonials tendered on your behalf as Exhibit 2 as a loving and loyal husband and father.
You grew up in Williamstown and left school at the completion of Year 11. You subsequently trained and qualified as a chef. You converted to Islam and your desire for a peaceful Islamic state took you to Afghanistan in 2001. You eventually returned to Australia in June 2003, having been detained without charge by Pakistani authorities since 4 January 2003 and held in deplorable conditions.
Upon your return to Australia you worked as a taxi/truck driver until your arrest in November 2004. Since then, you have spent 265 days in custody, including five and a half months when you were undergoing sentence.
A report by Professor McGorry, tendered in evidence as Exhibit 1, states that he has observed the exacerbating effects of incarceration upon your mental state during your previous periods in prison. In his opinion, you suffer from severe post traumatic stress disorder and major depression and that you have been seriously compromised psychiatrically as a result of your experiences in Pakistan and Australia during incarceration and that you would be seriously harmed should you be further imprisoned.
You have, nonetheless, and to your credit, been able to maintain employment since your release and your employer in his testimonial speaks highly of your work ethic, your value to the workplace and your commitment to your employment, even while you are undergoing trial.
In sentencing you, I take into account the age of the matter, that is, that this offence occurred over five and a half years ago, and the consequent delay in the resolution of the matter.
I take into account that in your interviews with Ms Neighbour and Mr Munro, you admitted being in possession of a falsified passport and I take into account the circumstances in which the offence occurred, although clearly, by reason of the jury's verdict, such circumstances are no excuse.
I take into account to a limited degree that you offered to plead guilty to the offence prior to this trial.
I take into account also your co‑operation with the Australian authorities while in Pakistan and I take into account also the circumstances of your detention in Pakistan and later in Australia.
I take into account your current mental state as described by Professor McGorry and the need for what he said was ongoing, intensive psychiatric rehabilitation.
I take into account your age, your good character and lack of prior convictions and the support of your family, including your parents who have loyally supported you throughout. All of these matters are such that the court can have confidence that your prospects for rehabilitation are favourable.
I take into account all relevant matters as detailed in s.16A of the Commonwealth Crimes Act, including having due regard to the nature and gravity of the offence here committed; the need to pass a sentence which will act in denunciation of your conduct and give due weight to considerations of general deterrence and accepting that specific deterrence may be given less weight because you are unlikely to reoffend in a like manner.
Accordingly, taking into account all matters which go in your favour, you are convicted and sentenced to nine months imprisonment. Such sentence is to commence this day, 29 October 2008, and I order that you are to be released upon a recognizance release order on the expiration of 265 days and I declare that you have already served by way of pre‑sentence detention a period of 265 days.
Take a seat, Mr Thomas.
Mr Robinson, as I have articulated that sentence, does that give effect to an immediate release today?
MR ROBINSON: Yes.
HER HONOUR: Could I ask your instructing solicitor to draw up the recognizance release order.
MR ROBINSON: There is a technical ‑ a recognizance amount needs to be fixed by Your Honour.
HER HONOUR: Yes. $1000?
MR ROBINSON: Yes, Your Honour.
HER HONOUR: There will be five days that he will be required to be of good behaviour, is that the situation.
MR ROBINSON: Your Honour, I am told Your Honour hasn't actually specified the period for which he has to be of good behaviour. If Your Honour meant merely the additional five days, then that would be a period.
HER HONOUR: The sentence is nine months, so I don't require him to be of good behaviour for a period beyond the expiration of the sentence, so that will be about 270. Do I have to express a period to be of good behaviour? Don't I just articulate that to Mr Thomas, that that is the requirement?
MR ROBINSON: No, Your Honour. The term of the bond can run past the period of sentence but Your Honour does need to specify the term of the bond. Your Honour can fix it at five days or some different amount. I am just being reminded that if Your Honour fixes a period of more than a week or more than five days, the obligation to be of good behaviour will run past the sentence period.
HER HONOUR: So it is five days.
MR ROBINSON: Five days technically on the order Your Honour has made. Can I hand up the structure of the bond. Your Honour may not have had many to deal with. It requires not only that the accused undertake by signing the bond and undertake to the court, but Your Honour sign it as the imposing judicial officer.
HER HONOUR: This period of five days, I am just trying to think how I have done it in the past. I think it should be for the term of the imprisonment, should it not?
MR ROBINSON: Your Honour can certainly fix it for that. That should suffice, Your Honour, because the term of imprisonment includes time served.
HER HONOUR: So it should be the term of imprisonment not the balance of the amount.
MR ROBINSON: If it fixes the term of imprisonment it should not have any effect in addition to the period of the five days. It would be tied to the sentence. Though, Your Honour, having said that ‑ ‑ ‑
HER HONOUR: Sentence runs from today.
MR ROBINSON: It runs from today.
HER HONOUR: I can't think what I have done in the past.
MR ROBINSON: I confess, I don't recall dealing with release recognizance that has been in this circumstance where, in effect, full sentence has been served at the time of imposition of sentence. I suspect that the schedule was not drawn with that as a very likely event.
HER HONOUR: Is that a mandatory condition?
MR ROBINSON: The imposition of a bond, I believe it is.
HER HONOUR: Yes, it does, section 20(1), "be of good behaviour for such period not exceeding five years as the court specifies in the order".
MR ROBINSON: There is certainly power within Your Honour to impose good behaviour beyond the sentence but Your Honour can fix any period and therefore ‑ ‑ ‑
HER HONOUR: We will leave it at the five days, I think. It seems artificial but I think under the circumstances there is no good reason to impose a longer period of good behaviour going beyond the sentence imposed.
Mr Thomas, could you come down and stand beside your counsel at the Bar table. I will ask your client to read that document and then sign it.
MR KENNAN: Thank you, Your Honour.
PRISONER: Thank God this honourable court has done justice.
HER HONOUR: That's enough, Mr Thomas. We haven't finished the procedure yet. Just remain standing there, thank you. Put the terms of the order to the prisoner.
(Order signed and acknowledged).
This document does not indicate the term of imprisonment that I have imposed, it says, after serving ‑ of the term of imprisonment.
MR ROBINSON: The order in the second paragraph has been issued because ‑ ‑ ‑
HER HONOUR: Down the bottom.
MR ROBINSON: Sentenced to nine months' imprisonment.
HER HONOUR: Thank you. Mr Thomas, do you understand the sentence I have imposed upon you? It is a sentence of nine months' imprisonment of which you have served 265 days. By signing this recognizance release order and undertaking to be of good behaviour for the following five days you are to be released forthwith, do you understand that?
PRISONER: Yes.
HER HONOUR: If you should breach the recognizance release order then you are at risk of forfeiting a thousand dollars and serving the balance of the five days. The five days simply arises because that is the figure that takes it up to 9 months, do you understand that? But the sentence imposed upon you is one of nine months' imprisonment, do you understand?
PRISONER: Yes.
HER HONOUR: Take a seat, thank you.
Mr Robinson, is there any impediment now to a number of other matters relating to Mr Thomas, various rulings and judgments and the like, because the trial was pending, had been removed from various internet sites. Is there any impediment to those documents being replaced.
MR ROBINSON: There is no impediment, as the Crown understands it, to the release of any of the material subject to suppression orders. The only exception being, and it is not a suppression order, in respect the to the s.22 orders there were certain things argued on voir dire before Your Honour. Your Honour will recall that the Attorney‑General's counsel indicated that they would, in accordance with Your Honour's direction, vet for the purpose of release and provide to Your Honour before such time to allow Your Honour at a convenient time to order release of that material. That aside, Your Honour, there is nothing that the Crown is aware of which would prevent the release of any other materials which were subject to suppression orders.
HER HONOUR: Thank you. Do you have anything to say on the matter, Mr Kennan?
MR KENNAN: No, I agree with what Mr Robinson says.
HER HONOUR: No other matters?
COUNSEL: No, Your Honour.
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