R v Thomson

Case •

[2020] NSWDC 337

•

14 February 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Thomson [2020] NSWDC 337
Hearing dates: 1 August 2019;
9 September 2019;
13 September 2019;
8 November 2019;
15 November 2019;
13 December 2019
14 February 2020
Date of orders: 14 February 2020
Decision date: 14 February 2020
Jurisdiction:Criminal
Before: King SC DCJ
Decision:

Convicted on each count.

Indicative sentences of imprisonment:

Count 1 - SEQ 012 [+ Form - s16BA offence SEQ 113]: 18 months

Count 2 - SEQ 011: 22 months

Count 3 - SEQ 001: 32 months

Count 4 - SEQ 004: 44 months

Aggregate sentence:

The offender is sentenced to a term of imprisonment for 5 years comprising of a NPP of 3 years commencing on 9/1/18 and expiring on 8/1/21 and a balance of term of 2 years to commence on 9/1/21 and to expire on 8/1/23.

To be released to parole on 8/1/21.

Pursuant to s21B CA 1914 I order that the sum of $169,986 be paid by the offender to the Commonwealth as repayment of the monies obtained from Newstart and the Disability Pension.

Catchwords:

CRIME – Sentence – knowingly make false/misleading statement re Australian travel doc - dishonestly obtain a financial advantage by deception - furnish false/misleading information to Medicare – make false statement to obtain/renew/endorse Australian Passport - possess or control passport not issued to self – lengthy & significant delays to sentence proceedings, "chequered history" – relevance to remorse and contrition – subjective matters – seriousness of offences - regret is not the same as remorse - aggregate sentence

Legislation Cited:

Australian Passports Act 2005

Crimes Act 1914 (Cth)

Criminal Code 1995

Health Insurance Act1973

Passports Act 1938

Cases Cited:

Xiao v R (2018) 96 NSWLR 1

Category:Sentence
Parties: Regina
Paul Frank Thomson
Representation: Counsel:
Crown: Mr T Muir
Defence: Ms D Hawkins
Solicitors:
Crown: Mr F Farah
Defence: Mr P Katsoolis
File Number(s): 2018/00007965

Judgment

  1. HIS HONOUR: Paul Frank Thomson appears for sentence in respect of four offences:

  1. That on or about 19 January 1994 at Sydney, he did knowingly make a false statement in writing for the purposes of obtaining an Australian passport by purporting to be Kenneth Graham Levy, born 1 July 1952, on an application for an Australian passport. That offence is contrary to s 10(1)(a) of the Passports Act 1938. The maximum penalty available in relation to that offence at the time that it was committed was two years’ imprisonment.

  2. That on or about 7 February 1994 at Sydney, he did furnish information to Medicare knowing the information was false in a material particular, namely by purporting to be Kenneth Graham Levy, born 1 July 1952. That offence is contrary to s 129 (2) of the Health Insurance Act1973. The maximum penalty provided is five years’ imprisonment.

  3. That on or about 6 November 2007 at Sydney, he did by purporting to be Kenneth Graham Levy, born 1 July 1952, make a statement to another person, namely, an Australia Post manager at North Ryde, that was false in an application for an Australian travel document. That offence is contrary to s 29(1)(b)(i) of the Australian Passports Act 2005. The maximum penalty provided is ten years’ imprisonment.

  4. That between about 7 August 2006 and 5 January 2018 at Sydney, he did by deception dishonestly obtain a financial advantage from the Commonwealth by causing to be lodged with Centrelink forms containing false information about his identity, namely, that he was Kenneth Graham Levy, born 1 July 1952. That offence is contrary to s 134.2(1) of the Criminal Code 1995. The maximum penalty provided is ten years’ imprisonment and/or a pecuniary penalty of 600 penalty units.

  1. In addition to those matters, the offender asks the Court, pursuant to s16BA of the Crimes Act 1914 (Cth), to take into account when dealing with him for the first of those offences, or Count 1, as it was on the indictment, a further offence contrary to s 9A(1)(d) of the Passports Act 1938:

  2. That he did without reasonable excuse have in his possession between 2 April 1994 and 21 June 2003 an Australian passport in the name of Kenneth Graham Levy, born 1 July 1952, that was not issued to him.

  3. At the time of the offending the maximum penalty was a term of imprisonment of one year.

  4. This matter first came before me for sentence on 1 August 2019. It has since that time had a chequered history, with ongoing changes in relation to representation from time to time, and intimations on various occasions that the offender would be seeking to withdraw his plea of guilty in respect of the fourth offence.

  5. On 1 August 2019, the sentence proceedings were stood over part heard. The Commonwealth Crown’s Sentence Summary was tendered together with the Crown’s submissions, and on behalf of the offender, a bundle of documents, being Exhibit T1, together with written submissions, being Exhibit T2. In addition the offender was called to give evidence. Ms Leigh Johnson, solicitor, appeared instructing Ms McGee, barrister, on behalf of the offender. The matter was adjourned for sentence to 9 September 2019.

  6. However, in the intervening period before sentence could be provided, the Court was informed by Ms Johnson that it was desired to make an application for me to recuse myself from further proceeding in the matter. The matter came before me again on 9 September 2019 and the matter was stood over to 13 September 2019 to determine the recusal application, at which time it was refused. Ms Johnson instructed Mr Michie, barrister, on that application.

  7. The Court was also informed on that date that the defence needed to apply for Legal Aid funding to research whether the plea should be withdrawn in relation to Count 4, and because the defence wished to consult an immigration lawyer as to the validity of his deportation on 18 August 1993. While orders were made as to the service of further material or submissions on these issues by the parties, nothing was filed on behalf of the offender. Accordingly, there was nothing for the Crown to respond to. On 13 September 2019, the matter was stood over to 8 November 2019.

  8. On 8 November there was no appearance by Ms McGee or by Ms Johnson, and Ms McWilliams appeared amicus curiae, indicating that she had been asked by Ms Johnson to take over the brief, but no application had yet been made for Legal Aid to approve the transfer of the brief from Ms Johnson to Ms McWilliams.

  9. On 8 November 2019, Mr Michie of counsel, who had appeared for the recusal application on the previous date, was granted leave to withdraw. The matter returned before me on 15 November 2019, when Ms Johnson appeared, no doubt as a result of my comment on the previous occasion that she actually needed to seek leave to withdraw and could not do it by way of an email. She then sought leave to withdraw and leave was granted. The Court was informed that Legal Aid had been approached to appoint a new solicitor and counsel, as in the intervening period Ms McWilliams had informed the Court that she would not be appearing for the offender.

  10. The matter was stood over to 17 December 2019 to allow fresh representation to be obtained and orders were made that any application, material or further submissions were to be provided in advance of the next date in respect of the foreshadowed withdrawal of the plea. No such material was provided, and the indication was that failing receipt of such material, I would proceed to sentence on 17 December 2019. Later on 15 December 2019, as new counsel had been appointed for the offender, and Mr Thomson’s then legal representation had had insufficient time to read the material, they sought a new timetable and I then listed the matter for mention on 13 December 2019, vacating the proposed sentence date of 17 December 2019.

  11. On 13 December 2019, Ms Hawkins, barrister, appeared for the offender, instructed by Mr Peter Katsoolis, who had by then been appointed to appear. The matter was again stood over to allow them time to consider the issue of the potential withdrawal of the plea in respect of Count 4 on the indictment, and the matter was otherwise stood over to today on the basis that any further material to be relied on by the defence in respect of the withdrawal of the plea was to be filed and supplied to the Crown by 24 January 2020, and the Crown was to respond by 31 January 2020. Mr Katsoolis on 10 February 2020 had the courtesy to inform the Court that there would today be no application to withdraw the plea to Count 4 and that there would be no further applications, submissions or materials sought to be tendered.

  12. As I previously indicated, the matter has had a chequered history but is now finally ready for sentence to be delivered in circumstances where the sentence was ready to be delivered a considerable period of time ago. It is necessary to have outlined the proceedings so that it could be understood why there has been such a significant delay. When matters such as this come before the Court with a chequered history, particularly in terms of appearances or representation, that causes the lists in this court to inordinately blow out. It has been the case that I have been ready to deliver sentence since shortly prior to the first occasion on which it was due to be delivered, and on various occasions I have had to spend time going back through the material in anticipation that on the next date that it was listed I would be able to deliver sentence.

  13. The lengthy delay and reasons for it also need to be referred to because it is relevant to issues such as remorse and contrition.

  14. The facts have been agreed and are as follows:

BACKGROUND

  1. The offender, Paul Frank Thomson, was born on 27 April 1952 in St Helens Public Hospital at Invercargill, New Zealand, to his parents, Nora Thomson (nee Dixon) and Thomas Ian Thomson.

  2. The Department of Internal Affairs in New Zealand has confirmed that the offender’s true identity and legal name is Paul Frank Thomson. The image connected with the holder of a New Zealand passport in this identity was provided to the Department of Foreign Affairs and Trade and a subsequent facial comparison was completed on this image and the image which appears in Australia passport M7740877 in the name Kenneth Graham Levy.

  3. According to Department of Home Affairs’ records the only listed record for Paul Frank Thomson (born 27 April 1952) is a departure from Australia on 19 August 1993 with New Zealand passport number J006544. There is no record of Paul Frank Thomson holding any entry permit authorising his stay in Australia at any time.

  4. On 5 December 1984, the offender was sentenced (in his real name) in NSW to four year’s imprisonment with a non-parole period of two years and three months. He had previously been convicted of other offences (in his real name) for which he had received a custodial sentence. Shortly after he was released from prison he was deported from Australia to New Zealand, on 31 December 1985.

  5. The offender applied for and was issued a New Zealand passport on 21 May 1987 in the name of Paul Frank Thomson. He subsequently returned to Australia, not referred to in the facts, but in the circumstances clearly not using his New Zealand passport.

  6. On 19 August 1991, he was sentenced in the District Court of New South Wales (in his real name) to two years’ and eight months’ imprisonment, to be released after two years. A deportation order was signed on 3 August 1993. He was then issued a New Zealand passport J006544 from Sydney on 13 August 1993 in the name of Paul Frank Thomson and deported from Australia on 19 August 1993.

  7. The offender returned to Australia illegally sometime after being deported. It was during this period that the real Kenneth Graham Levy was using the name “Gabriel Levy” and had been issued a Medicare Card with the wrong date of birth. Mr Gabriel Levy’s (the real Kenneth Graham Levy) date of birth was recorded on Medicare records as 1 July 1953, when the actual correct date of birth was 1 July 1952.

  8. Mr Levy continued to use the Medicare Card issued with the wrong date of birth, while the offender was issued with a Medicare Card in Mr Levy’s correct name with the correct date of birth.

  9. On 25 July 2014, Mr Levy attended the Burwood Roads and Maritime Services office to obtain a photo ID card and was then informed that a driver’s licence was recorded on the system in his previous name of “Kenneth Graham Levy”. He immediately recognised the photo on the licence as his old flatmate Paul Thomson.

  10. Mr Levy resided with the offender and the offender’s then partner, Carmel McKibbon, from the mid 1980’s to 2001. During this time Mr Levy was using the name “Gabriel Levy”, born 1 July 1952, for employment, banking, and taxation purposes, although he had not formally changed his name at that time.

COUNT 1 - On or about 19 January 1994 did knowingly make false statement in writing for the purpose of obtaining an Australian passport

Section 10(1)(A) Passport’s Act 1938 - maximum penalty two years’ imprisonment

  1. On 19 January 1994, the offender caused to be lodged an application for an Australian passport in the name of Kenneth Graham Levy, born 1 July 1952, at the Pyrmont Post Office in New South Wales.

  2. Submitted in support of the application was a New South Wales birth certificate, number 37887/5289, in the name of Kenneth Graham Levy, born 1 July 1952, a passport sized image of the offender, an ATO tax file number, and a State Bank Key card. This original birth certificate was located by police at the offender’s residence during execution of a search warrant. I note that, although not referred to in the facts, the passport application must have included certification from a relevantly qualified person as to the photograph being a true photograph of Kenneth Graham Levy.

  3. On 20 January 1994, as a result of the above application, an Australian passport K2770229 was issued to the offender in the name of Kenneth Graham Levy, date of birth 1 July 1952, with an expiry date of 20 January 2004. This passport was located at the offender’s residence during the execution of the search warrant.

COUNT 2 - On or about 7 February 1994 did furnish information to Medicare, namely, the information was false in a material particular

Section 129(2) Health Insurance Act 1973 - maximum penalty five years imprisonment

  1. On or about 7 February 1994, the offender caused a Medicare enrolment application to be submitted in the name of Kenneth G Levy, born 1 July 1952.

  2. On the same day, a Medicare Card was issued to the offender in the false name of Kenneth G Levy to the same address as referred to in the passport application referred to above, being 1/2 Phillip Street, Petersham. A Medicare Card with the number as issued was seized from the offender’s residence during the execution of the search warrant.

  3. Medicare records show that the offender does not hold a Medicare record in his own name (Paul Thomson); the card issued to the offender in the false name is associated with the offender’s address and banking information.

  4. The offender has been registered under the false name Kenneth G Levy with Medicare since 7 February 1994.

COUNT 3 - On or about 6 November 2007 making a false statement to another person that was false and the statement was made in an application for an Australian travel document

Section 29(1)(B)(I) Australian Passports Act 2005, maximum penalty ten years’ imprisonment

  1. On 6 November 2007, the offender caused to be submitted at the North Ryde postal office an application for an Australian passport in the name Kenneth Graham Levy, born 1 July 1952 - effectively a renewal of the false passport above relevant to Count 1.

  2. The offender submitted in support of the application an RTA photo identification card and his expired Australian passport. That is the passport issued with respect to Count 1.

  3. The offender was formally interviewed by the postal manager at North Ryde, who checked the application and supporting documents and confirmed that the image displayed on the applicant’s New South Wales photo ID was a clear image of the offender.

  4. This application was subsequently approved, and on 21 November 2007 Australian passport number M7740877 was issued to the offender. This passport was subsequently located at the offender’s residence during the execution of the search warrant.

COUNT 4 - between 7 August 2006 and 5 January 2018, by deception, he dishonestly obtained a financial advantage from the Commonwealth by causing to be lodged with Centrelink forms containing false information about his identity

Section 134.2 (1) Criminal Code - maximum penalty ten years’ imprisonment

  1. Over a period of 11 years and five months, between August 2006 and January 2018, the offender sought and received Newstart allowance and subsequently a Disability Support Pension in the false identity of Kenneth Graham Levy. The offender received a total of $169,986 in social security payments to which he was not entitled.

  2. Immigration records disclose that there is no record of the offender’s official arrival in Australia following his deportation in 1993. The offender is classed as an “unlawful non-citizen” and as such is not entitled to receive Newstart allowance or the Disability Support Pension.

  3. To be eligible for these payments, a person must satisfy the residency requirements for the payment. To be residentially qualified, a person must be residing in Australia at the time of claim and they must have a legal permanent residence status.

NEWSTART PAYMENTS

  1. As mentioned above, the offender was released from prison on 2 August 2006 after serving a period in custody of around two years and nine months under his assumed identity of Kenneth Graham Levy.

  2. On 8 August 2006, the offender lodged an application for a Newstart allowance under the name Kenneth Graham Levy. In support of the claim he submitted a number of documents which included:

  • a claim for crisis payment prison release form

  • a Department of Corrective Services discharge certificate dated 2 August 2006

  • a Medicare card number 244400266 (3)

  • a Long Bay Complex ID card number 100736

  • an ANZ Bank statement for an account ending 8819

  • a Medical certificate dated 3 August 2006 certifying the offender as unfit for work for 12 to 24 months, noting a diagnosis of pain associated with degenerative andropathy in the right hip and potential long term limitations on ability to work, depending on the outcome of a pending hip replacement.

  1. The offender commenced to receive Newstart allowance payments on 8 August 2006 and continued to receive these payments each fortnight up until he was placed on a Disability Support Pension on 18 November 2011.

  2. Between 8 August 2006 and 27 November 2011 (five years and three months) the offender received a total of $58,851 in Newstart allowance payments.

  3. During the course of this period, the offender submitted a series of treating doctors’ reports and medical certificates certifying his ongoing inability to work due to his hips.

DISABILITY SUPPORT PENSION

  1. On around 26 October 2011 the offender lodged a claim for Disability Support Pension in the name Kenneth Graham Levy. The claim was signed and dated 14 October 2011. In support of the claim he submitted a number of medical reports and medical certificates disclosing, amongst other things, that he suffers from constant pain in his hips, having undergone a bilateral hip replacement in 2006 and a bilateral revision in 2011 and Addison’s disease. He was certified by an orthopaedic surgeon as unable to work as a builder’s labourer owing to a confirmed diagnosis of bilateral revision total hip replacement. The certification form noted he had spent two weeks in hospital during the last 12 months for the revision total hip replacement in August 2011.

  2. The offender commenced to receive the Disability Support Pension on 18 November 2011, and continued to receive these payments each fortnight up until they were cancelled by the Department on 4 January 2018.

  1. Between 18 November 2011 and 4 January 2018 (six years and two months) the offender received Disability Support Pension payments totalling $111,135, giving, between the Newstart allowance and the Disability Support Pension, the previously referred to total of $169,986.

SECTION 16BA SCHEDULE - Between 2 April 1994 and 21 June 2003 at Sydney, he did without reasonable excuse have in his possession an Australian passport that was not issued to him

SECTION 9A (21) (D) PASSPORTS ACT 1938 - maximum penalty one year’s imprisonment.

  1. Between 3 April 1994 and 20 June 2003, the offender used the Australian passport the subject of Count 1 to travel to New Zealand on 27 occasions. The facts contain a schedule that I will not repeat but will summarise as showing that:

  • In 1994 he travelled on three occasions to New Zealand and returned to Australia.

  • In 1996 he travelled to New Zealand and returned to Australia on two occasions.

  • In 1997 he travelled to New Zealand and returned to Australia on six occasions.

  • In 1998 he travelled to New Zealand and returned to Australia on one occasion.

  • In 1999 he travelled to New Zealand and returned to Australia on five occasions.

  • In 2000 he travelled to New Zealand and returned to Australia on five occasions.

  • In 2002 he travelled to New Zealand and returned to Australia on two occasions.

  • In 2003 he travelled to New Zealand and returned to Australia on three occasions.

SEARCH WARRANT - ITEMS SEIZED FROM THE OFFENDER’S RESIDENCE

  1. The offender was arrested on 9 January 2018 during the execution of a search warrant at his premises at 1/37-39 Banksia Street, Eastwood. During the course of the execution of the search warrant the offender was cooperative with police and assisted them to locate items including the two passports and the birth certificate.

  2. A number of items were seized from his residence relating to the offender’s real and false identities, including:

  • New South Wales driver’s licence number 11891090 in the name of Kenneth Graham Levy (card number 2027634561) expiring 1 October 2013.

  • Medicare Card Number 244400266 (6) in the name of Kenneth G Levy (valid to 12/2020), (Count 2)

  • Australian Passport (M7740877) - issued 21 November 2007, expired 21 November 2017, in the name of Kenneth Graham Levy (Count 3)

  • A Birth Certificate in the name of Kenneth Graham Levy (DOB 1 July 1952)

  • Australian Passport (K2770229) - issued 20 January 1984, expired 20 January 2004, in the name of Kenneth Graham Levy (DOB 1 July 1952), (Count 1)

  • NSW Driver Licence (1181090) - expired 28 November 1999; card number 1043### - in name of Kenneth Graham Levy (DOB 1 July 1952)

  • Various identity cards in the name of Kenneth Levy.

  • Various correspondence, birthday cards, Christmas cards, et cetera, addressed to the offender in his real name.

  • Various correspondence, birthday cards, Christmas cards, et cetera, from the offender to family members.

  • Correspondence from Centrelink addressed to Kenneth G Levy in relation to the suspension of the Disability Pension, dated 2 January 2018.

  • ANZ bank statements for account #8819; Westpac bank statements for account #1913, addressed to the offender in his false name, K G Levy.

  • Medical records for the offender in his false name.

  • Medicare online claiming bulk bill assignment advice forms in the name of Kenneth Levy.

  1. The facts disclose that the offender has entered Australia illegally, on three separate occasions. He has been deported to his country of origin, New Zealand, by formal process on two occasions - in 1985 and in 1993, as previously referred to. He has never entered Australia using his true name for any New Zealand passport. He has lived in Australia for a significant period of time, at least since his third illegal entry, since, at the latest, sometime in 1994, through to date.

  2. His criminal history indicates that he has committed various offences in New South Wales, utilising on different occasions his true name and also the false name, as well as various dates of birth. His criminal history also indicates that he has used other names on various occasions, whether that be in New Zealand or in Australia.

  3. When the matter first came before me, the Crown foreshadowed a need to call the true Graham Levy to give evidence as to the use, without his knowledge, of his identity by the offender. I note that in the psychological report provided on behalf of the offender, he refers to having used the false identity by way of arrangement or agreement with the true Graham Levy.

  4. I am satisfied on the material before me that this offending could not have occurred in any circumstance other than where the true Graham Levy was fully aware of the use of his identity, and the proposed application to be made by the offender to obtain a passport in his name, as well as other documentation which would allow him to live a full life in Australia using the false identity. The offender needed to know at the outset that the true Graham Levy did not have documentation such as a driver’s licence in his true name, or a passport or a Medicare card that might show up when the offender made an application for those identification materials. He also needed to know that the true Graham Levy would not make any applications for such material, including a passport, as that would immediately make it clear that the offender had committed offences and caused an investigation into the duplication or potential duplication of the identity, Graham Levy.

  5. It was perhaps entirely fortuitous that Graham Levy had in fact obtained a Medicare card in the name of Gabriel Levy, with the wrong date of birth, being one year out. I say that because in my view it is not possible to accept that the offender deliberately stole the identity of a person who was not aware of his identity having been stolen.

  6. The offender has lived in Australia as Graham Levy, as far as his formal identity has been known, having obtained all of the necessary accoutrements of identification to enable him to rely on the false identity and, of course, to use that identity for the purpose of obtaining a tax file number and bank accounts in relation to which any income could be deposited from employers if paid by cheque or bank transfer. It hardly need be said that the offender has lived a life of deceit since at least early 1994 in relation to the identity of Graham Levy.

  7. He is not actually charged with any illegal entries into Australia. I simply note that as part of the background circumstance of how it is that he came to use the identity of Graham Levy. It is obvious that having been deported on 19 August 1993 after serving a period of imprisonment in New South Wales, he was fully aware that he would not be able to return to New South Wales even using a New Zealand passport, hence his return sometime between the deportation date of 19 August 1993 and the application for the passport date of 19 January 1994. As I understand it from his evidence, he effected his illegal return to Australia by stowing away, or what he referred to as, if my memory serves me correctly, a “raindrop”.

  8. The offender was committed for trial on 2 May 2018 from the Central Local Court. He was arraigned and pleaded guilty on 21 May 2019, which was approximately two weeks in advance of the scheduled trial date of 3 June 2019. He is entitled in those circumstances to receive the benefit of the plea where it facilitated the course of justice and/or for the utility of the plea as referred to in Xiao v R (2018) 96 NSWLR 1. However, it is apparent that the plea was entered at a very late stage, and in the face of what in my view was overwhelming evidence of the offender’s criminal conduct over the years which, in my view, would have been relatively straightforward and simple for the Crown to prove. Accordingly, the benefit for the facilitation of justice and/or utility must be minimal. The facilitation of the course of justice and the utility of the plea, in my view, has also been significantly affected by the delay in the resolution of the sentence proceedings because of the frequently foreshadowed desire to reverse his plea in respect of the fourth count, and the delay that has been caused otherwise by the need on various occasions for his legal representation to be changed. I am of the view that the course of conduct in this matter also adversely affects the issue of remorse and contrition.

  9. I will indicate that having heard his evidence on 1 August 2019 as well as having all of the material tendered, being the written submissions on behalf of both parties and the documents, being references and health records, in effect, and the psychological report of Anthony Dimmit contained in Exhibit T1, I had determined the sentence that I would impose before the recusal application or the subsequent delay. I wish to indicate that I will impose exactly the same sentence that I had already determined as appropriate, that is, I am not taking into account in any adverse way in respect of the defendant the course of conduct that has occurred in relation to this matter. While I have said that the course of conduct, in my view, also affects issues such as remorse and contrition and rehabilitation, I have not needed to change the view that I took as a result of the conduct of the proceedings concluding on 1 August 2019. I had already concluded, by way of example, that there was no acceptable evidence of remorse or contrition; the subsequent events have not changed my opinion, and it remains the same.

  10. In my view, all of the offences are objectively serious. It is of serious concern to the Australian community and to the authorities that the system of issuing and verifying passports can be relied on. It is similarly of significant concern to the authorities and the Australian community that those who receive a Newstart allowance or Disability Support Pension are persons entitled to receive them. When such payments are made to persons who are not entitled to them, they reduce the pool of money which will support those who are legitimately entitled to them, and it increases the need for higher taxation on Australian citizens in order to accommodate the misapplied funds.

  11. The seriousness of the passport offences is also, in my view, made more serious by the fact that the offender knew he was not entitled to be in Australia, and had unlawfully returned to Australia before obtaining the first passport, and his possession of that passport enabled him on 27 occasions to leave Australia as “Graham Levy” without being detected as an illegal entrant, as he would have been if he had endeavoured to leave in his true name, using his New Zealand passport. It also enabled him on each of those occasions to re-enter Australia, and I note that although there are no relevant charges, his exit and entry on each occasion would have involved filling in outgoing and incoming passenger cards, falsely claiming to be Graham Levy. In my view, each of the matters is a serious offence.

  12. The seriousness of the offence of making false statements to obtain passports is in fact indicated by the change in the legislated maximum penalty. The first passport offence in 1994 had a maximum penalty available of two years, but by the time of his attempt to renew the passport in November 2007, the penalty had been substantially increased to a maximum penalty of ten years which is, as I say, indicative of the seriousness with which such offences have come to be regarded.

  13. During the course of the hearing, in relation to the overpayment from Centrelink of $169,986, I have been informed that there has been no repayment by the offender of any sum, and that the offender has no relevant assets against which any order made by this Court might be executed for repayment of those funds. I do not regard that as an aggravating feature as it is frequently the consequence of criminal offending that involves the obtaining of goods and/or money. Offenders normally do it because they are not well off, although not in all cases.

  14. I also note, in relation to part of the period in relation to the offence of obtaining a financial advantage, that it occurred while he was the subject of parole, having been dealt with on 21 October 2005 for the offence of manufacture prohibited drug, and sentenced to imprisonment for three years commencing on 3 February 2005 with an 18 month non-parole period which expired on 2 August 2006. There is no New South Wales “Convictions, Sentences and Appeals Report” or “Custody Report” that has been tendered but it would appear that he was probably released on parole at about 2 August 2006 and from that time, the period of obtaining Centrelink overpayments commenced on 7 August 2006, while he was on parole, and until 3 February 2008 he would have continued to be on parole while receiving the benefits I have referred to. The commission of offences while on parole or any other form of conditional liberty has long been held to be an aggravating circumstance.

SUBJECTIVE MATTERS

  1. The offender is now 67 years of age, having commenced this sequence of offending in 1994, approximately 25 years ago. He was at the time of his arrest living in a de facto relationship with Ms Carmel McKibbon, a relationship in which he had been residing from a time prior to obtaining the first passport.

  2. In relation to subjective matters, I have been provided with a psychological report of Anthony Diment, dated 17 July 2019. A number of documents referred to in the schedule to Exhibit T1 are health records of the offender at various dates in the name of Graham Levy.

  3. There is a letter to the Court from Carmel McKibbon, dated 31 July 2019, and several medical reports in respect to her, being from her cardiologist, dated 28 May 2019, and also in respect of her from Dr Gergis of the Midway Family Medical Centre, dated 29 July 2019. There is an undated reference from Paris Williams, being the offender’s de facto grandchild, a reference dated 21 July 2019 from Karen Beetson, being a Deputy Director of the Aboriginal Health Service, a reference from Jack Williams, undated, being the offender’s de facto child, a letter from Michelle Chesno, psychologist, dated 25 July 2019, dealing with the psychologist’s concerns in relation to Ms McKibbon, and a letter from Angela McKibbon, being another child of Ms McKibbon’s as well as a letter from a Jodie Hodson, being a next door neighbour of the offender and the McKibbons.

  4. In addition, as is already obvious from my previous remarks, before me is the offender’s criminal history in New South Wales and an affidavit with annexures from Constable Ashton Johnston, New Zealand Police Force, with annexures in relation to the offender’s convictions in New Zealand, and in addition a further document in respect of Queensland court outcomes in relation to the offender in the name of Paul Frank Dixon –“Dixon” being, as previously referred to, his mother’s maiden name.

  5. When dealing with the recusal application on 13 September 2019, I did at length refer to the offender’s criminal history, and for the purpose of sentencing him today, I simply refer to that judgment which should be incorporated as an annexure to these reasons, making in unnecessary for me to repeat the detail.

  6. As I said on that occasion, having referred extensively to his history,

“The point of referring extensively to his criminal history is that he has been in a de facto relationship for an extended period of time commencing well before obtaining the false passport, and since the time of obtaining the false passport he has continued on various occasions to be detected committing criminal offences, and has been sentenced in respect of them during a time at which it can be reasonably anticipated he was residing with his de facto and her children”.

  1. As noted, none of the references from the family refer to having any knowledge of the offender having ever committed any offence, let alone the offences currently before the Court, nor to any knowledge that he has ever served any period of imprisonment, although it would appear on the facts to be extremely difficult to accept that at least his de facto, if not also her children, was not aware of his criminal offending. It was admitted on his behalf and there is some reference to it in his evidence that his de facto knew of his using a false identity. Graham Levy had been a boarder in their premises, or in premises shared with them prior to the false passport application.

  2. In relation to the offender’s evidence in respect of remorse and contrition, my view of his evidence on 1 August 2019 was that what he sought to demonstrate was that it was not his fault that he entered Australia illegally and then obtained a false passport and later utilised it, but the result of poor legal advice when he was first deported from Australia, having been advised not to contest the deportation. In my view, his evidence indicates that he in fact believes himself in effect to have been entitled to obtain the social security benefits that he did obtain. In respect of his renewal of the passport, he was questioned about the second passport:

“Q. Did you travel anywhere at all using the second passport?

A. No.

Q. With the second passport, did you travel anywhere at all using the second passport?

A. No, no. I don’t know why I got it really, it was - I just renewed it. It wasn’t that I needed another passport, I was just renewing the old one and I never used it. I thought the risk was too great. I wasn’t going to risk leaving the family here, you know”.

  1. He went on to describe it as being a “silly” thing to do. In my view he has no real appreciation of the criminal nature of his conduct, having given the response that it was a “silly” thing to do. I asked him,

“Q. It’s a criminal thing to do?” to which he then agreed.

“Q. Not silly, criminal?

A. Yes, all right, and it wasn’t necessary”.

  1. His rationale for obtaining the first false passport was that he needed it in order to travel to see his parents, who were ill in New Zealand, his father at some stage commencing to suffer from Alzheimer’s and his mother being diagnosed with cancer and eventually in care; both having, as I understand it, died during the time that he was using the first passport to travel back and forth to New Zealand.

  2. He seeks to excuse the conduct of obtaining the first passport because he needed it to go and see his parents in New Zealand, but he also needed the false passport, as I have previously said, because if he sought to leave Australia using his real name he would have been detected and unable to return to Australia, and so he also needed the passport to ensure that he would be able to return to Australia to continue to live his deceitful lifestyle.

  3. Ms McGee conceded during the hearing that his de facto was aware of his use of the false passport. As I understand it, both she and her children from time to time have visited him while in custody, when he was apparently known as ”Levy”, or alternatively “Dixon”. It seems to me to be inevitable, considering that he has served a number of significant periods of custody in New South Wales, that Ms McKibbon’s children must have become aware, if they were not already aware, that the offender was unlawfully present in Australia. That is of course relevant to any assessment of the various letters to the Court from Ms McKibbon, and from her children.

  4. On sentence it has been sought that the Court be sympathetic to Ms McKibbon  on the basis of her ill health and the fact that the offender has established a longstanding de facto relationship with her, and in effect a de facto stepfather relationship with her children. I accept that Ms McKibbon suffers from the various ailments involving her heart and leukaemia as referred to in the medical reports that have been tendered on sentence, but Ms McKibbon has always known that the offender’s presence in New South Wales was unlawful. She was prepared to in effect assist him, by being part of a de facto relationship, in perpetrating a general deceit on the Australian community.

  1. I have read all of the letters to the Court from the offender’s de facto children and grandchildren that have been provided. I have no doubt that they all hold the offender in high regard, but it is not clear from any of their references that they are at all aware of the facts that are before this Court on sentence in relation to his offending, that is, before the Court for sentence, or any of his past offending, although, as I have said, I would regard it as perhaps almost inevitable, considering the periods of time he spent in custody, that they must have some idea of his unlawful status in Australia.

  2. As I said, I am not going to deal with his criminal history, but I adopt what I have said on the recusal application. The offender has spent time in custody in New Zealand and in Australia, and a number of significant periods of time in custody in New South Wales. I also note that it is inevitable that when being sentenced for matters in New South Wales in the name of Levy, the Justice system has been abused by his use of the false identity.

  3. He has what I regard as an extensive criminal history. It involves offences in New Zealand in his relative youth of what is referred to as “burgles” in 1979, which must have been of relative seriousness because he received a term of imprisonment of two years and six months, and a further offence committed on 27 April 1980 of “stowing away”, which was not dealt with until 24 January 1986, and in respect of which he received a term of imprisonment of seven days.

  4. In New South Wales, his offending commenced in 1978, assuming that the references prior to that date to “Wellington” relate to Wellington, New Zealand, and not to Wellington, New South Wales. I note that he has received sentences of imprisonment in relation to unlawful use of a motor vehicle, break, enter and steal, escape from lawful custody, break and enter with intent to steal, supply prohibited drug, periodic detention in relation to drive with a midrange PCA. His most significant offending occurred in 2003 and he was dealt with on 2 March 2005 at the Sydney District Court for unlawfully selling firearms three times or more within 30 days, for which he received a three year and six months term of imprisonment concluding on 2 May 2007, with a non-parole period of two years concluding on 2 November 2005. However, seven months later, on 21 October 2005, he was sentenced for manufacture prohibited drug, with a further like offence taken into account on a Form 1, to imprisonment for three years to commence 3 February 2005 with a non-parole period of 18 months, commencing on 3 February 2005 and expiring 2 August 2006, that is, partly concurrent with the previously referred to sentence.

  5. As to his health, I note the psychological report of Mr Diment indicates that there is no evidence that he suffers from any serious psychopathology such as psychosis, delusions, hallucinations or any form of thought disorder or any social personality disorder.

  6. As to his remorse and contrition in relation to the offending, he informed Mr Diment:

“I certainly regret the way all this has turned out and now I would do it differently. I am not making excuses but I was given poor advice in the past. I had the belief I couldn’t do anything or sort out my deportation matter. I mostly kept all this up - passport, identification, situation et cetera because I wanted to see my parents. I do regret the trouble this has caused my family, especially for Carmen and the kids.”

  1. The report indicates that he had good memories of his early life. He was looked after by his parents who were “excellent parents”, and they did “normal family stuff”. His father was a sheep farmer and they grew up on a farm and had a healthy lifestyle, with the children assisting around the farm. He finished the Year 12 equivalent then aged 17 or 18 and commenced an apprenticeship in steel erection which he did for four years, then worked in the construction industry until he was approximately 25. At school he said that he was okay, but average academically; that at the end of his schooling he was keen to get out and work to make money, that he had had no learning problems or trouble with teachers at school.

  2. In New Zealand he had started a trade course in carpentry before changing to steel work, and over time he has done various jobs, including working in a nursery before moving to construction on the North Island. He otherwise had a relatively normal life socialising with friends and watching sport.

  3. He refers to having formed his relationship with Ms McKibbon prior to being deported to New Zealand in the 1980s, and again referred to the psychologist that his problems arose from poor advice that he had received about the deportation options, the advice having been accepted because “I was young and stupid and I went without proper advice.“ He claims he returned to Australia for Ms McKibbon because she had young children and had broken up with their father.

  4. All of her children are now adults with the exception of one child who is apparently some 13 years of age, which as I understand it, is a de facto grandchild.

  5. I note that the offender suffers from Addison’s disease, that he is said to have been depressed and anxious while in custody, and on the self-reported for severity of symptom “Beck Anxiety and Depression Index” he rated as severely anxious and severely depressed, although the psychologist assessed him as being above average on the valid measures of the Beck scales for clinical anxiety and depression. The offender is concerned about the impact that his arrest and being charged with these offences has had and will have on his de facto partner. As I understand it, her children now being adults, the impact is not that significant on them. I accept that he has been a strong supporter and carer for her over the years, and particularly in her ill health. But the potential consequences of him being arrested and deported from Australia have always been known to her, and I cannot feel sympathy for her on that count, although I am sympathetic to the fact that she suffers from ill health.

  6. I note she informed the psychologist as a result of a consultation prior to 17 July 2019 that:

“… as a token of my gratitude to him over the years I intend to marry him. He has been the father to my kids and grandfather to my grandkids too. I am not actually divorced and we have been partners for a long time. At my age being married as such isn’t that important but I want to do it for him. Will put in for my divorce”.

  1. It is now February 2020, and there is no information before me that she has in fact endeavoured to obtain a divorce so that she can marry him.

  2. The psychologist also refers to the offender having said to him,

“He told me (without prompting from me) that he deeply regretted his offending.”

  1. I have no doubt that the offender deeply regrets his offending, but regretting one’s offending is not the same as demonstrating remorse and contrition, and as I have previously referred to, I am unable to find in the material before me, or the offender’s evidence on sentence, any acceptable evidence of genuine remorse or contrition. As I have previously referred to, in my view, the offender’s evidence indicates that he excuses his offending as arising from poor legal advice when first being deported from Australia after entering unlawfully, and a sense of entitlement to be able to travel back and forth to New Zealand for his parents’ sake on a false passport, and of obtaining social security benefits because of his inability to work due to his ill health, in particular relating to the effect of Addison’s disease, which requires treatment with cortisone which inevitably affected his hips, leading to a hip replacement, a procedure which needed to be repeated because he was originally fitted with defective devices, as were many Australians, the devices being contaminated by cobalt and chromium.

  2. It would appear to be absolutely inevitable that the offender will be deported from Australia after serving whatever sentence is imposed in relation to this matter on the basis of his past history. It has been acknowledged by Ms McGee, and no submission to the contrary has been made that offending of this nature requires the imposition of a sentence of imprisonment, although she argued that the sentence should be one that could be served by way of an Intensive Correction Order.

  3. Even if that were the case, in my view, it would be inevitable that the offender would be deported, and the consequences of his not being able to provide support to Ms McKibbon or any child or grandchild would still apply.

  4. His health is not such that it cannot be adequately dealt with in custody. I have had regard to all of the material placed before me in that respect contained in Exhibit T1 and his evidence. His health issues are not such as cannot be readily dealt with by New South Wales Corrections, and there is a significant need in relation to matters such as this, particularly in relation to this offender, of recognising the need for specific deterrence, and in relation to other potential offenders, the need for general deterrence to be reflected.

  5. As to rehabilitation, I note that the offender is now 67 years of age. His criminal history appears to indicate that at least since being released in 2008 he has managed to live a law-abiding life, albeit as “Graham Levy”, and with the exception of the offences relating to the period of obtaining financial advantage between 7 August 2006 and 5 January 2018.

  6. In my view, there is at least in those circumstances a guarded reasonable prospect that he can be rehabilitated. Of course, that will be in New Zealand not Australia, with the exception of the time he must spend in Australia before being deported to New Zealand. The fact that he is highly likely to be deported to New Zealand is not a matter that I can take into account on sentence, but it would be inappropriate of me to ignore the fact of what would appear to be an inevitable consequence, particularly as it relates to the matters suggested as relevant by Ms McGee to imposing a sentence that could be dealt with by way of an Intensive Correction Order.

  7. I have taken all of those matters into account. I have also taken into account in relation to the individual matters that s 16A of the Crimes Act 1914 as well as s 17A require that a sentence of imprisonment may only be imposed in respect of Commonwealth offences if there is no other sentence appropriate in the circumstances.

  8. Offences of defrauding the Commonwealth of significant sums of money have been held in the past to generally necessitate the imposition of a custodial sentence, particularly in relation to the more serious cases of sustained and deliberate fraud, because deterrence becomes very important and imprisonment is ordinarily regarded as likely to be required.

  9. Offences in relation to social security matters are prevalent and easy to commit as well as being difficult to detect. Social security is designed to provide financial security for those in the community who are in need, and relies on the honesty of applicants to function effectively, and frauds of this type are serious offences that threaten the basis of the welfare system.

  10. As I have said, it was conceded by Ms McGee, and there is no submission to the contrary that a sentence of imprisonment is the only appropriate sentence. I have had regard to the maximum penalty available in relation to each of the relevant offences. I have had regard to the various factors set out in the Commonwealth legislation as being relevant and I have referred to them during the course of these reasons.

  11. I have already noted, in particular in relation to his ill health, that it does not appear to me to be such as would seriously impact on his ability to serve a term of imprisonment and that any difficulties in respect of his health can be readily coped with by Corrective Services. It does, however, remain relevant to the length of any sentence to be imposed.

  12. I intend to proceed by way of an aggregate sentence and I am required to indicate the sentence that would have been imposed in relation to each of the offences. I note first of all that the offender is convicted in relation to each of the four offences I have previously referred to.

  13. In relation to the offence of making a false statement contrary to s 10(1)(a) of the Passports Act 1938, also taking into account the offence contained on the s 16BA Form contrary to s 9A(1)(d) of possess an Australian passport not issued to him, the indicative sentence is 18 months’ imprisonment.

  14. In relation to the second count on the indictment and the offence before me, being an offence contrary to s 129(2), of furnish false misleading return as provided by the Health Insurance Act 1973, the indicative sentence is a period of 22 months’ imprisonment.

  15. As to the third offence, contrary to s 29(1)(b)(I) of the Australian Passports Act2005, of make false or misleading statement, the indicative sentence is a term of imprisonment of 32 months, otherwise expressed, two years and eight months.

  16. And in respect of the final offence, being an offence contrary to s 134.2(1) of the Criminal Code 1995 of obtaining a financial advantage of $169,986, the indicative sentence is 44 months’ imprisonment; otherwise expressed, three years and eight months.

  17. The aggregate sentence, allowing for what I regard as the absolute minimum time in custody to reflect the objective seriousness of the offences and the need for specific and general deterrence, is a sentence of five years’ imprisonment with a non-parole period of three years.

  18. All parties accept that the sentence should commence on the date of his arrest, being 9 January 2018, and as a result of the fact that he has been in custody solely in relation to these matters since that time. So the five year sentence commences on 9 January 2018; the non-parole period will expire on 8 January 2021, and I make an order that he be released on parole on 8 January 2021. The balance of term is two years, expiring on 8 January 2023. I note that the offender has spent time in custody in New South Wales on a number of occasions and I have no doubt that he fully understands what happens when released on parole if he does not abide by the conditions of parole. In the circumstances I feel it is unnecessary to offer the usual explanation to him.

HIS HONOUR: Now is there anything I’ve omitted or any error that’s been - you want an order in respect of the $169,000, I think, Mr Crown. Is there a document that’s been provided?

FARAH: No, sorry, I haven’t got a document if your Honour could make an order that the Commonwealth--

  1. HIS HONOUR: I will order that the sum of $169,986 be paid by the offender to the Commonwealth as repayment of the monies obtained for Newstart Allowance and the disability pension. Anything else I need to - is there a particular section I need to refer to, it’s probably in your submissions somewhere?

FARAH: Section 21B of the Crimes Act 1914.

  1. HIS HONOUR: I make that reparation order pursuant to s 21B of the Crimes Act 1914, as I said, the sum is to be payable to the Commonwealth. Ms Hawkins, is there anything you have noted?

HAWKINS: Just checking, your Honour. No, your Honour.

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Decision last updated: 30 June 2020

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