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Tham v R [2020] NSWCCA 338

The offender was sentenced following a plea of guilty of 1 count of dishonestly obtaining an Australian travel document contrary to s 35 of the Australian Passports Act 2005 (Cth), 1 count of making a false or misleading statement in connection with an application for an Australian passport contrary to s 29 Australian Passports Act 2005 (Cth), 2 counts of obtaining financial advantage by deception, contrary to s 134.2(1) Commonwealth Criminal Code. The financial advantage offences relate to $41,887.74 and $61,985.48 respectively. The original sentence imposed 6 years and 9 months’ imprisonment with a 4 year non-parole period.  The offender appealed on the basis that the sentencing judge erred in considering the objective seriousness of the social security fraud offences.  

Nature and Circumstances: The offender purported to satisfy eligibility criteria for benefits on the basis that they resided in Australia and were an Australian citizen. The offender’s presence in Australia had been unlawful on and from the time that they arrived in 1986. Offending reflected significant level of planning and sophistication. Offender’s status as an unlawful non-citizen was inextricably linked to the offending and plainly relevant to an assessment of objective seriousness. The financial advantage offences resulted in offender fraudulently obtaining a significant amount, namely $103,873.22, occurred over extended period, namely 6 years and 3 months, was premeditated and sophisticated and only ceased when the offender was arrested. Offending involved significant breach of trust. Those who claim social security benefits are often in such genuine and urgent need of assistance that there is no time to undertake an investigation of the veracity of information. The price of avoiding hardship to genuine claimants by granting them speedy relief is the risk of abuse by those who are not genuine. The Government relies upon and trusts the honesty of those who make applications for monetary benefits and the veracity of information provided.  

The appeal was unsuccessful. Appeal to leave was granted and the appeal was dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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