STATE OF TASMANIA v SCOTT ANDREW CRIPPS 3 NOVEMBER 2021
COMMENTS ON PASSING SENTENCE WOOD J
The defendant Scott Andrew Cripps has pleaded guilty to 22 charges contrary to the Australian Passports Act 2005 (Cth): namely, one offence of make false or misleading statements contrary to s 29(1), one offence of dishonestly obtaining an Australian travel document contrary to s 35(1), and 20 offences of use an Australian travel document issued to another, contrary to s 32(2) of the Act. Also before the Court is an application to review a community correction order and an application to activate a four month suspended term of imprisonment.
I begin by referring to some matters of background. In 2009, the defendant, Mr Cripps was convicted of two charges of indecent assault with respect to a child. He was placed on an international travel alert due to these convictions and was placed on the Australian National Child Offenders Register for a period of 5 years to expire in 2015.
On 28 July 2010, the defendant submitted a passport application in his name and providing his correct date of birth to the passport office in Hobart. A passport was issued to him expiring 20 July 2020. He travelled overseas on 14 occasions between July 2010 and May 2014. During that time, he was married to a woman in the Philippines and the purpose of his visits was to visit her and spend time with her in her home country.
In 2014, the defendant was issued with a travel ban from the Philippines Consular banning him from entering that country. On 18 November 2016, the defendant submitted a passport application in the name of Shane John Rogers with a date of birth that was not his own. He attached two photographs of himself endorsed with the false name. He enclosed proof of identity documents which were also fraudulent: a Tasmanian Personal Information Card depicting an image of the defendant but in the false name of Shane John Rogers, a birth certificate in the name of Shane John Rogers and a Medicare card issued to a person of that name. A passport in the name of Shane John Rogers was then issued on 22 November 2016 expiring 22 November 2026 to the defendant.
The defendant travelled overseas using that false passport under that false name on 10 occasions from 23 December 2016 to 26 September 2020. Initially, his purpose was to see his wife, until they separated. By approximately 2018, he had a new partner in the Philippines and he visited her hoping ultimately that she might be able to emigrate to Australia. The most recent departure from Australia giving rise to an offence was on 10 March 2020 and his return to Australia was on 26 September 2020. Generally, his trips ranged from a week to a month at a time. On each of those overseas trips he committed two offences by using a travel document issued to another, first, in leaving Australia by using the false passport and second, by using that false passport on his return to Australia. The reason for the longer stay in the Philippines in 2020 was due to COVID-19 travel restrictions.
On 27 October 2020, the defendant submitted an Australian passport renewal application in his own name. He did this because he wanted to travel overseas legally and his intention was to stop committing these offences. Facial recognition software detected that the image of Mr Cripps matched the image of Shane John Rogers and thereby the defendant’s wrongdoing came to light.
His home was searched on 18 November 2020 and various documents were found including the false passport and identification documents in that name.
The defendant was 49 years of age at the time of offending. He has two prior convictions for indecent assault that I mentioned committed on the same date in January 2002. He received a term of six months imprisonment for that offending in 2009. He has prior convictions for breaches of family violence order and two offences of impersonating a police office. These offences were committed in 2009. He received a suspended term of imprisonment of two months. In that same year he committed two offences of dishonesty and drug offences which were dealt with in the magistrates court. In 2015, he was convicted in the magistrates court of drug offences including an offence of unlawfully importing a controlled substance. He received a suspended sentence of imprisonment of four months in December 2015 for that offence.
In 2018, he was found not guilty by a jury of trafficking but guilty of three counts of possessing a controlled drug. In relation to two of those counts, he was sentenced to a community service order. A third count was deferred for sentencing for 12 months, essentially so he that he could demonstrate compliance and a period of no offending. That third offence was a serious matter involving MDMA and the conduct of importing. When the sentence was deferred on that matter, he was informed that he was on the brink of a gaol sentence, but if he addressed his drug use and was entirely cooperative with the orders imposed then I, as the sentencing judge, would be able to consider an alternative to actual gaol.
There was then, in 2018, an application to activate a suspended sentence of four months which had been imposed for the offence of importing a controlled substance. That sentence was not activated by me, but varied by imposing a period of supervised probation and extending it until 28 March 2019.
Mr Cripps was compliant with supervised probation apart from his offending that is now before the Court and related breaches of conditions including that he was not to leave Tasmania.
In relation to the deferred count, he was sentenced in May 2019 to a community correction order. This sentence reflected positive reports about his progress. The community correction order required he submit to supervision of a probation officer for a period of 12 months. It was a condition of that community correction order (indeed, every community correction order) that he must not commit an offence punishable by imprisonment. At some stage, he was informed that he did not need to attend supervision appointments with his probation officer after July 2019.
I now have an application to review that community correction order. The order is no longer in force. He committed seven of the offences, now before the court for sentence, during the currency of that 12 month period. He travelled overseas while subject to that community correction order leaving Australia on that false passport on 6 June 2019, 25 July 2019, 10 October 2019 and 10 March 2020. It appears from the information I have that, apart from this serious offending, he was compliant with the community correction order.
The Crown also seeks that I activate the suspended sentence which was varied by me on 29 May 2018 and extended until 28 March 2019. That sentence required the defendant’s good behaviour and that he must not commit an offence punishable by imprisonment during that extended period. The defendant breached that condition by travelling on a false passport departing Australia on 26 July 2018, 15 November 2018 and 21 March 2019, (counts 6, 7 and 8 on complaint 91454/20 and 4-6 on complaint 90535/21). The original breach that I dealt with was a blatant and serious breach of the original 4 month suspended sentence and indeed, the defendant was fortunate not to have that four month sentence activated by me in May 2018. It is very unusual for the Court to reactivate a suspended sentence which is essentially what I did, by adding a condition and extending it. In other words, he was given another opportunity but again blatantly breached the suspended sentence. There can be no further chances in relation to that suspended sentence of four months imprisonment and it will be activated.
The offences contrary to the Australian Passports Act each carry a maximum penalty of 10 years imprisonment. Of course, the circumstances of an individual’s offending as well as their personal circumstances must be taken into account. The offences committed by the defendant involved a lengthy course of dishonesty committed during a period of almost four years. It is a positive factor in his favour, that ultimately, in October 2020, he desisted of his own initiative and applied for a renewal of his passport with correct details of his identity.
The defendant has pleaded guilty at an early stage and is entitled to a discount for the utilitarian benefit of his plea.
His dishonesty in making and obtaining a false passport was to deliberately circumvent the travel ban imposed upon him by the Philippine government. It was an arrogant act of deception.
On the other hand, I take into account that the reason for his dishonest and deliberate course of conduct was so that he could see his partner who lived in the Philippines and not for some criminal purpose. Unlike some of the cases that come before the courts there is no suggestion of any criminal purpose or criminal conduct while travelling overseas.
I note that the travel ban was in existence in 2016 when the defendant first travelled on the false passport. It appears that this ban had been triggered by the record of his convictions and his listing on a national register for a fixed period of time of five years until 2015. By the time the defendant travelled in 2016 that fixed period had expired. I take into account that he took some appropriate steps to try and rectify the situation by instructing his lawyer to make representations to the authorities regarding the expiry of that listing. Those representations were made but to no avail. The frustration that the defendant felt was understandable but nonetheless the ban was in place and it was the prerogative of the Philippine government to ban him. He had no right at all to travel to the Philippines in the circumstances, and no justification at all for circumventing that ban.
General deterrence is an important consideration. The defendant’s conduct undermined the passport system and others who may be tempted to do likewise and disguise their identity must see that travelling on false passports is a very serious matter. As stated by Doyle CJM in Grahame v Singh [2010] SASC 306 at [22]-[24]:
“The strength of the passport system is that it provides a secure and reliable form of identification. This type of offending undermines the reliability and integrity of that system. This has both domestic and international implications.
Other countries rely on the passport system. An Australian passport enables its holder to travel freely to and from most countries without hindrance because of the confidence that other countries have in the integrity of the Australian passport system. If other countries lose confidence in the Australian passport system, then Australians travelling abroad risk losing the travel privileges that they currently enjoy by virtue of holding an Australian passport.
Further, passports allow for the movement of people across international borders. The relevant authorities in other countries as well as here in Australia have an interest in knowing who is entering and leaving their jurisdiction. There would be a significant security concern if persons entering other countries or Australia are not who they appear to be on their passports.”
I add that the security concerns of countries include concerns about child safety, the safety of their particularly vulnerable citizens.
Here, undoubtedly, the defendant’s prior convictions gave rise to legitimate concerns by the Philippine Government such that he was issued with a travel ban. A delay, as the defendant perceived it, in the lifting of a travel ban should be given no weight in mitigation. The simple fact is that no one has a right to travel to a country that they are banned from entering and the Australian and Philippine governments had every right to know his true identity.
Having regard to the defendant’s prior convictions, it can be seen at the time the defendant made the false application, obtained the false passport and had undertaken travel to the Philippines on three occasions he was on bail for the crime of trafficking.
In terms of the defendant’s personal circumstances, he is a self employed painter and has four adult children. He is in a de facto relationship with his partner who is living in the Philippines. He has a history of various mental health issues which involve fluctuating symptoms. These symptoms include extreme emotional distress and suicidal ideation, linked with situational crisis and reactive depressive symptoms. He has found appointments with a clinical psychologist very helpful. A report from clinical psychologist Mr Damien Minehan dated 2 November 2021 notes a history of childhood trauma that has contributed to the development of several problematic personality traits. There is not sufficient evidence to diagnose a borderline personality disorder but there are significant traits of that personality disorder. These are problematic, as noted, and lead to discrete periods of emotional dysregulation and depressive symptoms during stressful periods.
A custodial sentence will be felt by the defendant and is likely to impact on his mental health resulting in a disproportionately high level of distress. He is assessed by Mr Minehan as highly likely to maladaptively react with emotional distress and threats of suicide. There will be a need for the Prison Service to be vigilant in terms of his care and supervision.
I have read a letter from the defendant and I see that he understands the severity of his offending and that time in custody has given him a deeper insight into the seriousness of his offending. I also accept that his mental health is being affected and significant supports should be put in place as a matter of urgency and I can only trust the Prison Service to do that for him.
Mr Cripps, having regard to the considerations I have identified, the court must impose a penalty which will reinforce the serious aspects of your offending, and operate as a general deterrent. However, it will also reflect positive factors such as the reasons for your offending and that there was no collateral criminal purpose, and especially the decision you made to desist and to begin travelling legally in October 2020 and also your appreciation of the seriousness of your offending.
A gaol sentence is necessary but it will be relatively short. This is sufficient to meet the sentencing goals I have identified and reflects the circumstances of this particular case. The sentence will allow for your rehabilitation which remains an important goal. I have reflected on consequential orders such as a community correction order but it seems that you have taken responsible steps of your own initiative in the past in terms of your mental health and those steps do not need to be mandated. However, I will give your counsel an opportunity to submit to the contrary.
You are convicted of the Commonwealth offences to which you have pleaded guilty.
I impose a global sentence of 12 months’ imprisonment that is across all the offences under the Australian Passports Act. I direct that you be released after serving five months of the sentence upon giving security by recognisance in the sum of $5000 conditional on your good behaviour for a period of two years. The sentence of imprisonment will commence on the date you were remanded in custody which was the 16 August 2021.
I activate the suspended sentence of four months, but in the circumstances of this particular case, I take the exceptional course of making an order that it be served concurrently with the effective period of five months’ imprisonment I have just imposed.
I cancel the community correction order and I order that you serve one month imprisonment concurrently with the same effective period of five months.
It is most important that the Prison Service be informed of the defendant’s mental health issues and concerns so that supports and supervision can be put in place. I make a direction accordingly. I ask that Mr Cripps’ letter to me be provided as well as the recommendations of Mr Minehan in his report.
[An explanation of the sentence as required by the Crimes Act was provided including: You will be released after five months. If you fail to comply with the condition of the recognisance that you must be of good behaviour for two years you may be required to appear before the Court and if it is established that you have breached that good behaviour condition, you may be called upon to forfeit the amount of the recognisance, so you can then be required to pay the $5000. More importantly, the order I have made can be revoked and then you can then be required to serve the rest of the 12 month period of imprisonment that I have imposed today. I also need to explain to you that the terms of that can be varied or discharged in accordance with the provisions of s 20A of the Crimes Act.]