Tham v R - [2020] NSWCCA 338

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tham v R [2020] NSWCCA 338
Hearing dates: 27 November 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
Bellew J at [3]
Decision:
(1)   The time in which to file a notice of application for leave to appeal against sentence is extended to 10 August 2020.
(2)   Leave to appeal is granted.
(3)   The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred by taking into account the fact that the applicant was an unlawful non-citizen when assessing the objective seriousness of the fraud offences – Applicant’s unlawful citizenship status inextricably linked to the fact that he was not entitled to the benefits he obtained – Error not established
CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred in finding that the fraud offences were well above the mid-range and moving towards the upper end of the scale of objective seriousness – Error not established – Observations as to the breach of trust inherently involved in offending of this kind

Legislation Cited:
Australian Passports Act 2005 (Cth)
Crimes Act 1914 (Cth)
Criminal Code 1995 (Cth)
Social Security Act 1991 (Cth)

Cases Cited:
Ali v R [2010] NSWCCA 35
Mulato v R [2006] NSWCCA 282
R v Conway (2001) 121 A Crim R 177; [2001] NSWCCA 51
R v De Leeuw [2015] NSWCCA 183
R v Hawkins (1989) 45 A Crim R 430
R v Lopez [1999] NSWCCA 245
R v Richard [2011] NSWSC 866
R v Van Tung Luu (Court of Criminal Appeal (NSW), 7 December 1984, unrep)

Category: Principal judgment
Parties: Kwok Wah Tham – Applicant
Regina – Respondent
Representation:
Counsel:
L Brasch and M Voleynik – Applicant
G Wright – Respondent
Solicitors:
Armstrong Legal – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2018/323189
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

8 November 2019

Before:

His Honour Judge Bennett SC

Judgment

BATHURST CJ: I agree with Bellew J.
HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes.
BELLEW J: Kwok Wah Tham (the applicant) pleaded guilty before the Local Court to the following offences:

between 11 August 2016 and 30 March 2017, did dishonestly obtain an Australian travel document, namely Australian passport in the name of Simon Man Lee, contrary to s 35 of the Australian Passports Act 2005 (Cth) (count 1);

on or about 23 October 2008, did make a false or misleading statement in connection with an application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tham v R

Details

AGLC: Tham v R [2020] NSWCCA 338
Case: [2020] NSWCCA 338
Decision Date: 17 December 2020

CaseChat Overview and Summary

In the case of Tham v R, the applicant, Tham, an unlawful non-citizen, appealed against his sentence for offences involving the dishonest acquisition of a passport and associated revenue fraud offences. The appeal centred on the sentencing judge's consideration of Tham's unlawful citizenship status when assessing the objective seriousness of the fraud offences. The Court of Appeal needed to determine whether the sentencing judge erred by taking this factor into account and whether the assessment of the objective seriousness of the fraud offences was accurate.

The court considered whether the sentencing judge erred by considering Tham's unlawful citizenship status. The court held that this status was inextricably linked to the fact that Tham was not entitled to the benefits he obtained, making it a relevant factor in the sentencing process. The court also reviewed the sentencing judge's assessment of the objective seriousness of the fraud offences, which was found to be well above the mid-range and moving towards the upper end of the scale. The court found that no error was established in this assessment, noting the inherent breach of trust involved in the offending.

In conclusion, the Court of Appeal dismissed the appeal. The sentencing judge did not err in considering Tham's unlawful citizenship status, and the assessment of the objective seriousness of the fraud offences was accurate. The final orders of the Court of Appeal upheld the original sentence imposed by the sentencing judge.

Orders