Tham v R [2020] NSWCCA 338

Tham v R [2020] NSWCCA 338

The applicant's status as an unlawful non-citizen was inextricably linked to the social security fraud offences because the benefits were payable only to an Australian resident and he used a false Australian citizenship identity to meet the eligibility criteria; this demonstrated planning and sophistication and was relevant to objective seriousness. Given the significant amount fraudulently obtained, the extended period, the premeditated and sophisticated use of a false identity, cessation only on arrest, and the breach of trust inherent in the claims, the sentencing judge's assessment that counts 3 and 4 were well above the middle range and moving towards the upper end was reasonably open.

Jurisdiction
Australia
Judgment Date
17 December 2020
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence
Outcome
Extension of time granted; leave to appeal granted; appeal dismissed.
Legal Topics
['sentence Appeal' 'objective Seriousness' 'social Security Fraud' 'passport Offences' 'unlawful Non Citizen' 'financial Advantage by Deception']
['criminal Law'] ['sentence Appeal' 'objective Seriousness' 'social Security Fraud' 'passport Offences' 'unlawful Non Citizen' 'financial Advantage by Deception']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred by taking into account the applicant's status as an unlawful non-citizen when assessing the objective seriousness of the social security fraud offences." 'Whether the sentencing judge erred in finding that the social security fraud offences were well above the mid-range and moving towards the upper end of the scale of objective seriousness.']

Ratio Decidendi

The applicant's status as an unlawful non-citizen was inextricably linked to the social security fraud offences because the benefits were payable only to an Australian resident and he used a false Australian citizenship identity to meet the eligibility criteria; this demonstrated planning and sophistication and was relevant to objective seriousness. Given the significant amount fraudulently obtained, the extended period, the premeditated and sophisticated use of a false identity, cessation only on arrest, and the breach of trust inherent in the claims, the sentencing judge's assessment that counts 3 and 4 were well above the middle range and moving towards the upper end was reasonably open.

Court Disposition

Extension of time granted; leave to appeal granted; appeal dismissed.

Orders

  • ['The time in which to file a notice of application for leave to appeal against sentence is extended until 10 August 2020.' 'Leave to appeal is granted.' 'The appeal is dismissed.']