Lee v Phelan [2004] ACTSC 28 (20 May 2004)

Last Updated: 23 June 2004

HAE CHANG LEE v CHRISTIAN JAMES PHELAN

[2004] ACTSC 28 (20 May 2004)

MAGISTRATES COURT - appeal against sentence - offence of making false statement to obtain passport - sentence of six months imprisonment fully suspended - sentence not manifestly excessive - Passports Act 1938 (Cth), s 10 - obtaining a passport by false statement - imprisonment within range.

Passports Act 1938 (Cth), s 10(1)

Anthony John Pinkstone (2000) 116 A Crim R 187

Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370

The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 80 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 20 May 2004

IN THE SUPREME COURT OF THE )

) No SCA 80 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: HAE CHANG LEE

Appellant

AND: CHRISTIAN JAMES PHELAN

Respondent

ORDER

Judge: Connolly J

Date: 20 May 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against sentence be dismissed and the Magistrate's orders be confirmed.

1. This is an appeal against sentence from a decision of Magistrate Doogan, who on 12 December 2003 sentenced the appellant to six months imprisonment fully suspended upon his entering into a recognizance in the sum of $2,000 and to be of good behaviour for a period of 12 months, following his plea of guilty to a charge that he made a false statement contrary to s 10(1) of the Passports Act 1938 (Cth) (the Passports Act) on 3 November 2000. I note that the appeal asserts that the recognizance was for two years (AB 1), but that both the bench sheet (AB 3) and transcript (AB 31) refer to 12 months. It is clearly 12 months.

2. The statement of facts before the learned sentencing magistrate (Appeal Book at 88-90) asserts that on 3 November 2000 the appellant lodged an application for an Australian passport in his name at the Gungahlin Post Office. The appellant was born in Seoul, Korea, in 1972, and migrated to Australia at the age of 20 in 1992. He became an Australian citizen on 31 May 1996. The application for the passport contained a photograph of another person, now known to be a Chinese national, said by the appellant to be a Mr Zhonghai Jin, who had been his boss when the appellant worked as a cleaner at Woolworths supermarket, Erindale. The application asserted that the photograph was of the appellant, and on 8 November 2000 an Australian passport was issued to the appellant in his name, but bearing the photograph of Mr Zhonghai Jin. On 15 April 2001 this passport was used by a person to depart Australia for the United States. The statement of facts says that there is no record of the passport being used to return to Australia. On 18 April 2001 (three days after the original passport was used by a person to leave Australia) the appellant applied for a new passport, stating that he had lost his original passport, and a passport was duly issued to the appellant in his name and bearing his photograph. He was also charged with making a false statement in relation to his application on 18 April 2001 in which he claimed that his original passport had been lost, to which he pleaded guilty and was on 12 December 2003 sentenced to a fine of $500. No appeal is brought against this aspect of the Magistrate's decision.

3. Section 10(1)(a) provides that -

10(1) A person shall not knowingly make any false or misleading statement, whether orally or in writing -

(a) for the purpose of obtaining an Australian passport or a renewal or endorsement of an Australian passport.

The maximum penalty provided in the section is imprisonment for two years or a fine of $5,000. Section 11 of the Passports Act provides that the offence created by s 10 is an indictable offence, but that a person may consent to having the matter dealt with summarily, in which case the maximum penalty that may be imposed by a court of summary jurisdiction is imprisonment for one year or a fine not exceeding $2,000 or both.

4. The appellant elected, with the consent of the prosecution, to have the matter dealt with summarily in the Magistrates Court. This meant that the maximum penalty to which he was exposed was reduced from two years imprisonment and a fine of $5,000 to one year imprisonment and a fine of $2,000.

5. In the sentencing proceedings following his early plea of guilty, Mr Bevan, for the appellant, urged upon the Magistrate a non-custodial sentence, stressing that the appellant had no previous convictions. Against this, Ms Davis, for the prosecution (the respondent), made the submission that general deterrence was an important factor in cases of Passport Act offences because such offences "strike at the very heart of the reliability and integrity of the passport system".

6. In determining that a custodial sentence was appropriate, the learned Magistrate made the observation that reported authorities showed that custodial sentences could be appropriate in such cases, relying on the decision of the Western Australian Court of Criminal Appeal in Anthony John Pinkstone (2000) 116 A Crim R 187. She continued (AB 29) -

And the reason why people are sentenced to imprisonment for offences like this are rather obvious. They concern, above all - offences of providing false information for passports concern and go to the heart of, as Ms Davis pointed out, as is contained in the case, the reliability and integrity of the whole passport system is put in jeopardy, and this has implications and concerns, not only domestically, but invariably for international implications as well. So general deterrence must be a very compelling factor when considering matters such as this.

7. It seems to me that the learned Magistrate's remarks show no error in principle. She was clearly troubled by the fact that in the record of interview with police the appellant had denied all knowledge of any offence. She described the police interview as a "tissue of lies", and on his plea of guilty this is clearly a correct description. She also expressed concerns that the pre-sentence report stated that the appellant had provided the passport to enable a friend to go to Korea, but in submissions on instructions Mr Bevan said that the purpose was to enable an acquaintance to go to China. Although it emerged in the sentencing hearing that the pre-sentence report reference to Korea was wrong, and should have been to China, the information before the learned Magistrate was that the passport had in fact been used to leave Australia and enter the United States.

8. It seems to me that in the case of offences which go to the integrity of the Australian passport system, general deterrence is of particular importance. A sentencing judge or magistrate must in sentencing any federal offender have regard to the provisions of s 16A of the Crimes Act 1914, which imposes a duty on the sentencing court to impose a sentence "that is of a severity appropriate in all the circumstances of the offence". Although general deterrence is not listed as one of the factors listed in s 16A(2), it has been held by the New South Wales Court of Criminal Appeal that principles of general deterrence remain relevant to the sentencing of federal offenders. In Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 the Court (Kirby P, Campbell and Newman JJ) said at 378 that the primary duty in s 16A(1) to impose a sentence of appropriate severity imports the general principles of sentencing into the function of a court sentencing a federal offender, and -

What will be "appropriate" will depend, in part, upon a consideration of fundamental notions, such as that of general deterrence.

9. The integrity of the passport system is of importance to the community because an Australian passport provides a secure and reliable form of identification. Australian citizens carrying Australian passports enjoy certain reciprocal ease of travel advantages with other countries, because of the confidence that those states have in the integrity of the Australian passport system. More significantly, the availability of false passports would allow the easy flow of persons across international borders and could facilitate significant criminal activity, or indeed terrorist activity. This much was recognised and referred to by the learned Magistrate in her reasons for sentence (AB 16). It seems to me that this reference was not inappropriate, and does not breach the principles referred to in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 that in sentencing, the conduct of the accused may be taken into account, including objective factors which aggravate the offence for which a person has pleaded guilty, but not circumstances of aggravation warranting conviction for a more serious offence (per Gibbs CJ at 389).

10. The learned Magistrate correctly, in my view, had regard to the fact that the false statement in the matter under appeal went to the facilitation of a passport being issued in the appellant's name, but bearing the photograph of another person, and that this passport was subsequently used to allow another person to depart Australia and enter another country, avoiding normal migration controls. In Pinkstone it was observed by Pidgeon J and Wallwork J that the relevant section of the Passport Act encompasses a wide range of offences which can range from some incorrect information in an application which is otherwise correct, to a comprehensively false application, which would be towards the upper end of offences. It seems to me that knowingly obtaining a passport bearing a photograph of another person to enable that other person to falsely use an Australian passport, must be considered as being towards the higher end of this range of activity.

11. In Pinkstone the Court of Appeal reduced the length of a custodial sentence imposed in the District Court, but nevertheless imposed a sentence of imprisonment with seven months minimum to be served where the offender obtained a passport with his photograph but in the name of another person. The Court noted that some material provided to the Court, which was said to be an extract from a New South Wales database on sentencing showed that an actual custodial sentence had only been imposed in 4 per cent of prosecutions brought in the local courts of New South Wales in 1996. Both Pidgeon J and Wallwork J were of the view that this information did not really assist them, and I would respectfully agree, given the small number of cases in the sample, and the wide range of activities caught by the terms of the offence created by s 10 of the Passports Act. In the course of submissions in this appeal, Mr White, for the respondent, indicated that in the period from November 2001 to May 2004, 31 prosecutions had been dealt with for the relevant offence, of which 13 involved terms of imprisonment with "most of those with some time to serve". Again, it seems to me that such statistical material is not of great assistance, beyond showing, as was apparent from Pinkstone, that a custodial sentence is within range for an offence of making a false declaration contrary to s 10 of the Passports Act.

12. It seems to me that, notwithstanding the lack of prior convictions and the early plea of guilty, both of which were expressly referred to by the learned Magistrate, a period of imprisonment was not beyond the range of sentencing options available to her Worship. In imposing a sentence of six months imprisonment, fully suspended, for an offence involving a false statement which lead, to the appellant's knowledge, to the issue of a passport in his name but bearing the photographic likeness of another, was, it seems to me, well within the bounds of sentencing discretion in circumstances where the maximum penalty would have been 12 months imprisonment. In deciding that a custodial sentence was appropriate, but then deciding to fully suspend the sentence, the learned Magistrate, it seems to me, was appropriately addressing the task of determining to suspend a sentence in accordance with the principles of Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

13. The learned Magistrate formed the view that a custodial sentence was appropriate, stressing appropriately aspects of general deterrence and the objective severity of this offence, but then by reason of the plea of guilty, character and the aspects of remorse referred to in the pre-sentence report, decided to fully suspend the sentence (AB 16). Her process of reasoning here is not affected by any error of principle.

14. It seems to me that the sentencing procedure has not been shown to have been in error, and that in deciding to impose a sentence of six months imprisonment, and to fully suspend such sentence, the learned Magistrate was operating within appropriate bounds of sentencing discretion. Indeed, as Mr White observed, the decision to fully suspend the sentence can be seen as being quite merciful to the appellant, and to give him full credit for his plea of guilty and good character. It seems to me that had the Magistrate required some of the sentence to be actually served, she would not have erred, but the respondent did not seek to review the sentence on this basis.

15. The appeal will be dismissed, and the sentence confirmed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 20 May 2004

Counsel for the appellant: Mr P Bevan

Solicitor for the appellant: Baker Deane and Nutt

Counsel for the respondent: Mr J White

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 4 May 2004

Date of judgment: 20 May 2004