District Court New South Wales Medium Neutral Citation: R v Jagjit Singh [2020] NSWDC 242 Hearing dates: 24 April 2020, 30 April 2020 Decision date: 08 May 2020 Jurisdiction: Criminal Before: Yehia SC DCJ Decision: The offender is convicted in respect of Counts 1 and 2. Taking into account a 10% reduction in sentence for the utilitarian value of the plea of guilty, I set out the following indicative sentences: Count 1: Taking into account the offence on the s 16BA schedule, the offender is sentenced to imprisonment for 2 years. Count 2: Taking into account the offence on the s 16BA Schedule, the offender is sentenced to imprisonment for 2 years 6 months. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender is sentenced to an aggregate term of imprisonment of 3 years. The offender is to be released forthwith upon entering a recognisance himself in the sum of $1000, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), with the condition that he be of good behaviour for a period of 3 years commencing today. Catchwords: CRIME – arranging a marriage with the intention of assisting another to obtain a stay visa by satisfying the criteria of the visa because of the marriage SENTENCING – whether the prosecution had established that the offender was motivated by a desire to obtain a financial benefit – onus on the prosecution to prove an aggravating factor beyond reasonable doubt – weight to be given to general deterrence where a person is conducting a business as an arranger of false marriages SENTENCING – whether a term of full-time imprisonment is the only available option in circumstances where there has been unexplained delay on the part of investigating authorities – delay which is not attributable to the offender may constitute a powerful mitigating factor Legislation Cited: Crimes Act 1914 (Cth), s 16A(2) Migration Act 1958 (Cth), s 240(1) Cases Cited: Asfoor v The Queen [2005] WASCA 126 DPP (Cth) v Beattie [2017] NSWCCA 301 Markarian v The Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v Fahda [1999] NSWCCA 267 R v McLean [2001] NSWCCA 58 R v Miranda [2002] NSWCCA 89 R v Todd (1982) 2 NSWLR 517 Category: Sentence Parties: Commonwealth Director of Public Prosecutions Jagjit Singh Representation: Counsel: A McGrath D A Marr Solicitors: Commonwealth Director of Public Prosecutions AC Law Group File Number(s): 2018/316663 Judgment 1. Jagjit Singh, the offender, comes before me to be sentenced in relation to two offences of arranging a marriage with the intention of assisting another to obtain a stay visa by satisfying the criteria of the visa because of the marriage. The offences are contrary to s 240(1) of the Migration Act 1958 (Cth) ("Migration Act") and each carries a maximum penalty of 10 years imprisonment. 2. Count 1 is an offence that, between about 10 December 2013 and 3 February 2014, the offender arranged a marriage between Benjamin Prothero and Gupreet Kaur with the intention of assisting Ms Kaur to obtain a stay visa. 3. In sentencing the offender in respect of Count 1, I take into account an additional offence contrary to s 240(1) contained on a s 16BA Schedule (sequence 1), namely, that between 14 May 2013 and about 20 May 2013, the offender arranged a marriage between Zaynab Youssef and Karmjeet Singh (K Singh) to obtain a stay visa. 4. Count 2 is an offence that, between 1 February and 17 February 2014, the offender arranged a marriage between April Mae Wheeler and Mani Karan Singh (M K Singh) to obtain a stay visa. 5. When I sentence the offender for this offence, I take into account a further offence contrary to s 240(1) of the Migration Act which is set out on the s 16BA Schedule. This offence relates to the offender, in February 2015, arranging a marriage between Chaoley Mounser and Siddarth Sharma. 6. The offending conduct extended over the period between 10 December 2013 and about 13 February 2015. However, three of the offences took place within a relatively short period between 10 December 2013 and 20 May 2014. There was then a gap in the offending until the fourth offence was committed in February 2015. 7. On 7 May 2019, the offender was committed for trial to the District Court. On 7 June 2019, the offender was arraigned and pleaded not guilty. The matter was listed for trial to commence on 2 December 2019 with a 10–12 day estimate. On 8 November 2019, at the second Readiness Hearing, the possibility of a plea of guilty was raised. On 22 November, the offender's willingness to plead guilty was confirmed. On 27 November 2019, the offender was re-arraigned and entered pleas of guilty, some five days before the trial was due to start. 8. The offender submits that the discount to be afforded is one between 15% and 20%. The Crown submits that, having regard to the lateness of the plea, a reduction in sentence in the order of 15–20% is not warranted. 9. This was a late plea of guilty. I am satisfied that there was some utilitarian value in the plea having regard to the estimate of the trial. However, the plea of guilty was indicated at the earliest on 8 November 2019, a matter of weeks before the trial commenced and was not entered until about five days before the trial was listed. In the circumstances, I am satisfied that a reduction in sentence by 10% is appropriate to reflect the utilitarian value of the plea. 10. Although there was a strong case against him, I am prepared to find that the offender has demonstrated a willingness to facilitate the course of justice having regard to his plea of guilty and the fact that, although he left Australia shortly after the execution of the search warrant to visit family in India, upon his return he contacted investigators. He notified the authorities of his return to the country. Curiously, and for reasons that remain unexplained, no attempt was made to interview him at that time. A prominent feature in this case is delay and the way in which delay impacts upon the sentence proceedings. I will return to this issue in due course. Facts 1. The circumstances giving rise to the offences are set out in the statement of agreed facts that can be summarised as follows. 2. Between 2013 and 2015, the offender arranged, along with others including marriage celebrants and migration agents, marriages between Indian citizens and Australian citizens for the purpose of facilitating the advancement of the Indian citizens' visa applications, knowing that the purpose of the marriages was to satisfy criteria of the visas. 3. The offender's role in the scheme included: 1. The sourcing of Australian participants to take place in marriages to unknown Indian citizens; 2. Liaising with two Australian citizens (intermediaries) who had already participated in a wedding on their own behalf to recruit additional Australian citizen participants for weddings; 3. Liaising with marriage celebrants who performed the wedding ceremonies and arranged the formal documentation of marriage; 4. Liaising with migration agents who prepared visa applications and supporting documentation; 5. Assisting in the obtaining of identity documents for some wedding participants to further support visa applications (by suggesting that the marriage participants open joint bank accounts, and the obtaining of passport sized photographs). 1. With respect to each of the two substantive counts, the offender: 1. arranged marriages between two persons (physical element – conduct), and intended to do so (fault element – intention); and 2. did so with the intent of one of the two persons obtaining a stay visa by satisfying criterion for the visa because of the marriage. 1. The offender has pleaded guilty or acknowledged his guilt on the basis that he concedes arranging the marriages and knowing that the marriages were not genuine, with the intent of one of the persons obtaining a stay visa. Section 16BA Schedule – 1 – Marriage of Zaynab Youssef and K Singh 1. On 14 May 2013, the offender sent an SMS to Suzanne Akkari from his mobile phone which read "do u able u find any girl…I pay u $6,000". Akkari responded that she was sure she could find someone. 2. On 14 May 2013, Akkari contacted Zaynab Youssef over the social media platform Facebook and proposed that Youseff enter an arrangement to allow an Indian citizen to remain in Australia. It was explained to Youssef that her role was to sign documents and pretend to be the Indian participant's wife, but that she was not required to live with him. A one-off payment would be made to Youssef under this arrangement, and then she would also be paid a further $1,000 per month. Akkari stated that she (Akkari) would receive $500 for her role, and would be signing the documents as a witness. Akkari told Youssef to delete all conversations in which these arrangements were discussed. 3. On 14 May 2013, the offender received notification from Akkari that she had found a candidate and that she was free on Monday. The offender requested Akkari send a picture. 4. On 16 May 2013, the offender received an SMS from Akkari asking if there was any news, and advised in return that Monday was good provided that it was done in the evening, and that if Akkari was able to get another Australian participant, both could attend weddings on the same date and that Akkari would be paid more money as a result. The offender promised a $6,000 payment for each girl. 5. The offender then assisted in making the arrangements for the wedding in which Youssef was to participate. 6. On 20 May 2013, a formal wedding between Youssef and K Singh took place, involving the exchange of wedding vows and rings between the participating parties. Prior to departing the residence, the offender provided payment to Youssef of $1,000 in $50 notes. 7. Between May and October 2013, Youssef and K Singh took various steps to validate the marriage for the purposes of the visa application. They opened a joint bank account in their names. On about 30 May 2013, they attended the offices of a migration agent who compiled a statement as to how they had met, and completed an application containing multiple false statements, including the residential address of Youssef and the date of the first meeting between the pair. 8. On or about 17 June 2013, K Singh made an application for a partner visa in Australia. Youssef, purporting to be K Singh's partner, acted as his sponsor in this application. 9. The marriage between K Singh and Youssef was to satisfy a criterion for the subclass visa application, being an application for a stay visa within the meaning of the Migration Act. 10. Between July 2013 and February 2014, Youssef was paid $1,000 every month by K Singh. 11. On 20 August 2014, Youssef attended the offices of Australian Border Force ("ABF") and participated in an electronically recorded interview in respect of the marriage to K Singh and the visa application she sponsored as spouse. She asserted at this time that the marriage she had entered into with K Singh was not a genuine relationship and was entered into for the purposes of supporting the visa application of K Singh, in return for financial reward. Count 1 – Marriage of Benjamin Prothero and Gurpreet Kaur 1. On 8 May 2013, the offender received a series of SMS from Nicole Flower who enquired whether she could get her payment earlier next month. Those text messages are set out at paragraph [22] of the statement of facts. During that exchange, the offender sent a text asking: "if you really need money can you arrange any girl for marriage then I can able to give you money". He also texted: "okay, I give you total $6000. You have to pay $3000 to girl and $3000 for you…. And then the guy paying to girl $1000 every month until 18 month." 2. On 10 December 2013, the offender was notified by Flower that she had found a male who wanted to get married. Details were exchanged, and the offender indicated the marriage could take place "[s]oon may be this coming Friday or Saturday". 3. The offender then made arrangements for the wedding in which Prothero was to participate. He notified Flower as to the details, and asked her to bring Prothero, along with suitable identification for him. 4. On 17 December 2013, the offender and Flower transported Prothero and Gurpreet Kaur to the house of the marriage celebrant, where he performed a marriage ceremony in which vows were exchanged, wedding rings exchanged and paperwork completed. The marriage certificate was signed by the parties, with Flower as a witness. Flower also completed and signed a "Statutory Declaration by a Supporting Witness in Relation to a Partner or Prospective Marriage Visa Application" (Form 888). Prothero entered his details and signed a "Sponsorship for a Partner to Migrate to Australia" (Form 40SP) with Flower's assistance. 5. After the ceremony, the offender paid Prothero $3,000 in cash for his participation, and Flower received $2,000 in cash. 6. The offender transported Prothero and Kaur to the office of the migration agent in Blacktown, and further documentation was completed by the parties. 7. On departure from the office of the migration agent, the offender accompanied Prothero and Kaur along with others to the Westpac Bank, and an application was submitted for a joint bank account. 8. In about January 2014, the offender requested that Prothero meet him at Blacktown Post Office, where passport-size photographs of Prothero were taken. The offender paid for the photographs and took possession of them once supplied. 9. On about 3 February 2014, The Department of Immigration and Border Protection ("DIBP") received the Form 40SP signed by Prothero and Kaur. The application was dated 17 December 2013, and contained the passport photographs Prothero had had taken in January 2014 and supplied to the offender. The Application was supported by Form 888 statutory declarations and the Certificate of Marriage issued on 17 December 2013, attesting to the marriage on the same date. 10. Between March 2014 and November 2014, Prothero attended the offices of a lawyer in Harris Park. The offender and Kaur were present. Prothero refused to participate further at this time until he was paid monies outstanding from the agreement that had been entered into. The offender had a record of the amounts that had been paid to date to Prothero, and Kaur paid Prothero $5,000 in cash on this occasion. 11. In November 2014, Prothero met with the offender and discussed a further request for photographs and the money owed. The offender asked Prothero to change his residential address as recorded with Centrelink, a request that was refused. 12. On 14 January 2015, Prothero attended the offices of ABF and participated in an electronically recorded interview in respect of his marriage to Gurpreet Kaur, and the visa application he sponsored as spouse. He asserted at this time that the marriage he had entered into with Kaur was not a genuine relationship and was entered into for the purposes of supporting the visa application of Kaur. Count 2 – Marriage of April Mae Wheeler and M K Singh 1. On 31 January 2014, the offender sent an SMS message to Jordon-Lee Evans (Evans) which read: "Hi do u have more girl, I need ASAP. If you have". 2. In about February 2014, Evans posted a message over Facebook seeking people who wanted to make quick money. April Mae Wheeler responded; she was told by Evans that the proposal involved getting married to an Indian man, with the requirement that they stay married for 18 months, in which time it was necessary to meet and have photographs taken every 2 months. In return for this service, the participant was to receive $2,000 on the day of the wedding and $1,000 each month thereafter. 3. Between 3 and 16 February 2014, SMS conversations occurred between the offender and Evans arranging attendance for the wedding. The offender told Evans he would bring the payment on the day of the wedding, and that Wheeler should wear something suitable. 4. On 17 February 2014, Wheeler and Evans attended Sydney so that the wedding could take place. The party travelled to the house of the celebrant and there met the intended bridegroom, M K Singh. The wedding took place; vows were exchanged and the marriage certificate signed by the parties. The Notice of Intended Marriage was signed, and backdated to 10 January 2014. 5. Following the ceremony, the offender transported Evans, Wheeler and another to an office of a migration agent, where visa application forms were signed by the parties, including the 40SP and 47SP ("Application for Migration to Australia by a Partner") Forms. The offender, together with Evans, Wheeler and M K Singh constructed a story as to how the pair had met and formed a relationship, to be provided to DIBP in support of the visa application. Wheeler and M K Singh thereafter travelled to a bank and opened a joint bank account, pursuant to the offender's instructions. 6. After returning to the offices of the migration agent, the offender provided an envelope of cash to Evans, who paid Wheeler $2,000 in cash from that envelope. Wheeler had understood that she was to be paid $2,000 on the day of the wedding for her participation in the wedding and her involvement with the visa application, and $1,000 per month thereafter, with a requirement that the pair stay married for 18 months. 7. On 19 February 2014, Wheeler again met with the offender at the migration agent's office. Additional visa application forms were signed, and the passport photographs Wheeler had been asked to bring were attached to these forms. 8. On about 7 March 2014, DIBP received an application for a partner visa in Australia on behalf of M K Singh. The application was supported by Wheeler's signed Form 40SP, in which Wheeler purported to be M K Singh's partner and acted as his sponsor for the purposes of the application. False representations were made in this application as to when the pair had met, when they had committed to each other, and was supported by Form 888 declarations and the marriage certificate. 9. In around March 2015, Wheler attended the offices of ABF and signed a formal statement in respect of her marriage to M K Singh, and the visa application she sponsored as spouse. Section 16BA Schedule – 2 – Marriage of Chaoley Mounser and Siddharth Sharma 1. On 30 January 2015, the offender received an SMS message from Evans which read "This girl wants to do it also, Chaoley Mounser 21 October 1996". 2. Between 30 January 2015 and 13 February 2015, the offender and Evans exchanged a number of SMS messages discussing Mounser's willingness to participate in such a marriage and making arrangements. 3. Between 9 and 10 February 2015, discussions occurred between Evans and Mounser as to arrangements for the date of the wedding, attendance at a bank to open an account, the completion of paperwork, and that Mounser would be paid $1,500 on the day of the wedding and $1,000 every month thereafter. Mounser was instructed as to what to wear and what identification to bring. 4. The offender advised Evans of the arrangements for the wedding in which Mounser was to participate. A wedding celebrant conducted the wedding on 13 February 2015. 5. On 13 February 2015, Mounser travelled to Sydney with Brooke Evans (B Evans). They met with the offender and purchased a dress for the wedding and were then transported to the residence of the bridegroom and his family where photographs were taken. Sharma and Monsour were instructed to open a joint bank account. 6. The offender, B Evans and Mounser travelled to a residence, where a number of forms were signed which contained multiple false entries about the history of the relationship. A migration agent was present who assisted in completing the forms. Thereafter the party travelled to the residence where the wedding took place. Mounser signed a blank page that the offender said was a story about how the couple had met and was intended to support the application. The marriage certificate was signed by Mounser and Sharma and witnessed by B Evans. The Notice of Intended Marriage was also signed. 7. At the conclusion of the wedding, the offender provided B Evans with an envelope containing cash, of which B Evans provided Mounser $1,500 and retained the remainder herself. 8. On 17 February 2015, a Certificate of Insurance was issued by AAMI Insurance listing the insured car as belonging to Sharma and Mounser, with the residential address of Sharma nominated. This Certificate was supplied to DIBP as supporting documentation for the visa application. 9. On 18 February 2015, a Form 888 was signed by Dharminder Kumar, attesting that the marriage between Mounser and Sharma was a genuine and continuing one. That supporting document was later submitted to DIBP. 10. On 19 February 2015, a Form 888 was signed by Amandeep Singh, attesting that the marriage between Mounser and Sharma was a genuine and continuing one. That supporting document was later submitted to DIBP. 11. On 23 February 2015, DIBP received an application for a partner visa in Australia on behalf of Sharma, which included a completed Form 40SP signed by Mounser and was supported by the marriage certificate issued on 15 February 2015 and Form 888 witness declarations. 12. The Sharma application falsely represented that Mounser was Sharma's partner, acting as his sponsor in this application. False representations were made as to when Sharma and Mounser had first met and committed to each other. 13. On 14 April 2015, Mounser signed and submitted a letter to DIBP withdrawing her sponsorship of Sharma. 14. On 31 March 2015, a search warrant was executed at the offender's home and a number of items were seized. 15. Proceedings were commenced against the offender in October 2018, some 3 years 7 months after the execution of the search warrant. 16. None of the marriage celebrants or migration agents involved in these matters have been charged, with investigations continuing. Objective Seriousness 1. I must sentence the offender in accordance with Part 1B of the Crimes Act 1914 (Cth). I must specifically take into account the matters listed in s 16A(2), as far as they are relevant and known to the Court. 2. The nature and circumstances of the offences are detailed in the summary of agreed facts set out above. The offences were committed in the course of a planned and organised enterprise which involved migration agents, marriage celebrants, intermediaries and wedding participants. The offending also involved a degree of sophistication because it involved arranging and counselling people about how to create a false appearance of a committed relationship to support visa applications. On the facts before me, although the offender was involved with others in the construction of a false story on one occasion, the evidence does not establish that he arranged and counselled people about how to create a false appearance of a committed relationship. 3. In written submissions filed on behalf of the offender, I am urged to find that the offences are well below the mid-range for offences of this nature. It is contended on behalf of the offender that, while he arranged marriages, his role was relatively minor, locating people willing to participate in the sham marriages for payment. Further, it is submitted that the marriages could not have taken place without the involvement of the marriage celebrants and that there is no evidence that this offender was conducting a business as an arranger of false marriages. 4. The Crown submits that I would find the offender was the principal in this criminal enterprise, motivated by financial gain, which is an aggravating factor. 5. The offences do not attract a standard non-parole period. In those circumstances it is not necessary to characterise the objective seriousness of the offences by reference to a notional midpoint. However, having regard to the way in which the submissions have been framed, in addition to setting out the particular role of the offender, I will make an assessment of the objective seriousness of the offences couched in the language used in the parties' submissions. 6. In terms of the objective seriousness of the overall criminal enterprise, I am satisfied that the offences fall in the middle of the range of objective seriousness. I make that finding because I am satisfied there was a degree of planning and organisation involved in the criminal enterprise. The criminality involved the use and payment of intermediaries and marriage participants. In addition, at least two migration agents and two marriage celebrants were utilised, although I have no information as to whether and how much they were paid. The deception involved the fabrication of false relationship histories and the inclusion of multiple false statements in official documents. 7. When I analyse the contents of the statement of agreed facts closely, this offender was involved in constructing a false story on one occasion only. To be clear, that the enterprise involved planning and organisation and a level of sophistication is established. While the offender engaged in instructing and directing others in relation to aspects of the wedding ceremonies, the prosecution has not established beyond reasonable doubt that it was this offender who initiated the enterprise or developed the model used in the enterprise. 8. In addition to determining the objective seriousness of the overall criminality, I must also assess the role of the offender in this criminal enterprise. Before I do so, it is necessary to summarise the sworn evidence given by the offender during the sentence proceedings and to set out my findings in respect of a number of matters that appear to be in dispute between the parties. In summary, the matters in dispute are: 1. whether or not the offender obtained a financial benefit and a related question of whether he was involved in or conducting a "business", and; 2. the nature and extent of his role. The Offender's Evidence in the Proceedings 1. The proceedings took place in compliance with the existing protocols formulated to reduce the risk of Covid-19 transmission. As a result, all of the parties appeared by way of "Virtual Courtroom", a videoconferencing facility. The offender has a reasonable command of the English language but, on occasion, it was necessary to rely on the assistance of an interpreter, who also appeared remotely. This was not an ideal situation. From time to time, one or other connection dropped out. From time to time, it was difficult to hear the offender or the interpreter and the evidence had to be repeated. 2. Notwithstanding these difficulties, I am satisfied that the offender did ultimately understand the questions asked of him, even where there was some initial confusion. Having regard to these difficulties, I must exercise caution before I make any adverse findings about the offender's credibility. For instance, inconsistent answers may well have been a result of the issues with the technology or misunderstanding of some of the questions or propositions that were put. 3. The offender gave evidence of his charitable works and his involvement in the Sikh community. The offender is himself a practising Sikh and attends the Sikh Temple regularly. During the period between December 2013 and about July 2015, he occupied a management role in a restaurant chain that had establishments in Double Bay and Bateman's Bay. He worked in one or other restaurant seven days a week. 4. He came to know a number of people through the restaurant and the Temple, including Gurpreet Kaur and M K Singh. K Singh was introduced to him by one of the migration agents. He gave evidence that he engaged in arranging these sham marriages to help these people obtain stay visas. 5. The offender maintained during his evidence that he did not receive any payment for arranging the marriages. Initially he gave evidence that he was not aware that the conduct was illegal at the time. However, he later agreed that he knew that what he was doing was both dishonest and illegal. 6. The offender was cross-examined at some length. He maintained that he did not receive a financial benefit in exchange for arranging the marriages. He agreed that he spent a modest amount of his own money in arranging the marriages but that the payments to the intermediaries and marriage participants were paid by those individuals seeking to obtain the stay visas. These expenditures were not met by him. 7. In respect of eight wedding rings found at his premises during the execution of a search warrant, the offender gave evidence that two of the rings belonged to his wife. He initially said that the six remaining rings were purchased by him for the purpose of the wedding ceremonies. However he later gave evidence that the rings were not for the purpose of the ceremonies. I am satisfied that six of the rings located at his premises were purchased by him to be used during the ceremonies. However, I am satisfied that they were cheap rings, bought at a cost of about $20 each. The funds expended by the offender himself were not significant. 8. The offender was also cross-examined in relation to various sums of money that he sent overseas in 2015. He agreed that, in February 2015, he sent a sum of $6,508 to India; in July 2015 he sent a sum of $9,000 to India; and in August 2015 he sent a further $9,000 to India. It became apparent in re-examination that each of those sums of money was sent by the offender to his father who resided in India. It also became apparent that he had borrowed this money from Ms Payal, his sister-in-law. 9. The Crown, during cross-examination, showed the offender a handwritten note located at his premises during the execution of the search warrant. The note reads: "sent to India $45,455.00". It was put to him that the handwriting was his. He did not accept that proposition and gave evidence that he was sharing the premises with another person at the time. No further evidence was put before me to establish that the handwriting was indeed that of the offender. I am not satisfied that the notation was made by the offender and cannot infer that he sent a sum of $45,450 to India. 10. The Crown submits that I would be satisfied beyond reasonable doubt that the offender engaged in arranging these marriages for financial gain. In the alternative, I would find that he was engaging in a "business" because he procured others who, in exchange for payment, became involved in the criminal conduct. The Crown further submits that I would find that the offender is a principal in this criminal enterprise. 11. Mr Marr, on behalf of the offender, submits that I could not be satisfied beyond reasonable doubt that the offender obtained any financial reward. Furthermore it is submitted that I would find that the offender's role was peripheral or "relatively minor". Findings 1. At first blush, the assertion that the offender did not obtain a financial benefit in exchange for arranging the marriages lacks credibility. However, the offender gave sworn evidence. He was cross-examined at some length. He maintained that he did not obtain any financial reward for his part in the offences. The prosecution bears the onus of establishing this aggravating factor beyond reasonable doubt. Suspicion is not a substitute for proof beyond reasonable doubt. 2. The prosecution presented no evidence to rebut the assertion that the offender did not engage in this conduct in exchange for payment. No bank records were produced in support of the contention that he did obtain a financial benefit. There was no evidence adduced from other participants in the criminal enterprise to support that contention. 3. Suspicion is not sufficient to establish an aggravating factor. The Crown has not established beyond reasonable doubt that the offender engaged in the criminal conduct for financial reward. In the absence of evidence capable of discrediting the offender in his assertion that he did not obtain payment, I do not find that the offender obtained a financial benefit. I accept that the source of the payments made to the intermediaries and marriage participants on each occasion was the individual seeking to obtain a visa. Was the offender running a business? 1. The Crown submits that, notwithstanding a failure to establish to the requisite standard that the offender obtained a financial benefit, he did engage in a "business" in that he procured others to engage in the criminal activity for payment. 2. The concept of a business suggests an organisation earning a profit for the products and services it offers. A crucial aspect of a business is commercial activity. 3. In this case, I am satisfied that the intermediaries and marriage participants obtained a financial advantage and were paid for their services. I have no evidence as to whether and to what extent the migration agents and marriage celebrants were paid. The Commonwealth Director of Public Prosecutions (by way of email dated 4 May 2020) confirms that there are no known prosecution proceedings commenced against the relevant marriage celebrants, migration agents or lawyers involved in these matters. 4. The criminal enterprise involved a payment of a fee to individuals who performed the services of marriage intermediaries and marriage participants. However, this offender was not engaged in the enterprise for financial reward and did not obtain payment for his role in that enterprise. 5. In one sense, there was a business in operation because people were being paid for their services. However, I have some difficulty describing the role of this offender as the principal or head of that business in circumstances where he was not obtaining a financial benefit or profit. His role is better described, in my view, as a facilitator or coordinator of the enterprise. 6. I am satisfied that his role included the following: 1. he engaged and liaised with intermediaries to procure Australian citizens to participate in the sham marriages. These intermediaries included Ms Akkari, Ms Flower and Ms Jordon-Lee Evans; 2. he offered and paid the intermediaries and the wedding participants amounts of money for their roles in these marriages but this money did not come out of his pocket – rather, it was provided by those seeking to obtain the visas; 3. he organised the actual wedding ceremonies, including organising the wedding celebrant; 4. he transported the wedding participants to the wedding ceremonies; 5. he transported the wedding participants to attend a migration agent to complete the relevant visa applications. On one occasion he participated with others in constructing a false relationship history; 6. he transported the wedding participants to the bank to open joint bank accounts, instructing them to do so; and 7. he assisted the participants to obtain passport photos that were used in the visa applications; 1. The offender's role is more serious than that of the intermediaries such as Jordon-Lee Evans. The offender was in a more senior position. His involvement demonstrated a degree of autonomy, decision-making and control in excess of that demonstrated in the conduct of the intermediaries. His role was crucial to the criminal enterprise. 2. However, I have insufficient evidence to make a finding that he was the principal in this criminal enterprise. He had no part to play in compiling, preparing or providing the false documents used in support of the visa applications. I have no evidence about the migration agents and marriage celebrants engaged in this enterprise. The evidence before me is limited to the offender's role in what was a more extensive operation involving multiple participants about whom I have no evidence. 3. That the offender played a more serious role than the intermediaries is established. However, that does not mean that the prosecution has established that he was a principal in this enterprise. 4. That said, I am not satisfied that the offender played a minor role or was peripheral to the criminal enterprise. For the reasons set out above, he demonstrated a degree of autonomy and decision-making in arranging the marriages, including coordinating the tasks that had to be undertaken such as advising on what to wear, the photographs to be taken and conveying the participants to the premises of marriage celebrants and offices of migration agents. 5. I find that Count 2 is more serious than Count 1 because, not only did the offender initiate the enquiry as to whether there was a "girl" available and make arrangements in respect of the wedding, but on this occasion he also engaged with Evans, Wheeler and M K Singh in constructing a false story about the relationship. Subjective Circumstances 1. The offender is currently 33 years of age. He was aged between 26 and 28 years old when the offences were committed. The offender has been with his wife since 2007 and they have two children aged 12 and 2 years. The relationship is described as supportive and loving. 2. Mr Singh was born in India and arrived in Australia in 2007 on a student visa. While here, he met his partner and applied for an interdependency visa. He has two sisters with whom he got on well growing up and they continue to be close. His mother passed away in 2012 from cancer. 3. His parents had a mostly supportive relationship while they were together. His father consumed alcohol to excess and, because he served in the army, he was not around much. The offender described his father as very strict, conservative and said that he often hit him. He was not permitted outside the family home after 8pm up until he left India at 21 years of age. His father was punitive and, when drunk, physically violent. 4. By contrast, his mother as caring and very focussed on her children. His parents put excessively high expectations on him to perform well academically and professionally. 5. He had a smooth transition into formal schooling which he mostly enjoyed. He found it easy to make friends and was not the subject of notable bullying. He achieved average grades and enjoyed sports. He was not always able to concentrate at school and rarely completed projects and his homework on time. He was respectful of his teachers, was engaged in classroom activities and was never disruptive in class. 6. After completing high school, Mr Singh travelled to Australia to study and completed an English language course and a Diploma in Business Management and Accounting. He managed a restaurant then worked for a local council in waste removal. He is currently employed casually as a cleaner through his sister-in-law's business. 7. Psychometric testing was administered by Mr Ballardie in relation to his present mood and functioning. The offender scored in the "extremely severe" range for depression, anxiety and stress. 8. The offender stated that he first noticed his depression when he was about 10 years of age. He said his father was very punitive and described him losing control when he was drunk. 9. He was very close to his mother. The tragedy of his mother's passing in 2012 impacted upon him severely and he felt particularly depressed following her death. He found cleaning work in June 2013 but was disappointed with this work and felt that he was going nowhere with his career. 10. Mr Ballardie concluded that the offender suffers from low self-esteem, has negative self-evaluations, low personal resilience, is pessimistic and insecure, and is sensitive to perceived criticism. 11. His reported symptoms include depressed mood, social withdrawal, difficulty relaxing, a reduced ability to feel pleasure, problems getting to and maintaining sleep, and a lack of initiative and motivation. He felt overwhelmed, inadequate, that he had nothing to look forward to and that his life was meaningless. 12. The offender commenced the Positive Lifestyle program with the Salvation Army. During the assessment conducted by Mr Ballardie, the offender demonstrated a fair level of insight and appeared motivated to accept treatment for his depression and anxiety. A treatment plan includes regular counselling and treatment including cognitive behaviour therapy and psychiatric assessment. 13. The offender is diagnosed as suffering from depression and anxiety. The Crown submits that the diagnoses of depression and anxiety are based upon the history provided by the offender to the psychologist. In cross-examination the offender was asked questions about a form completed by the psychologist on 24 January 2020. This form is referred to as "DASS 21" and is exhibit B in the proceedings. It is a questionnaire relating to a number of issues including the offender's level of enthusiasm and engagement or initiative. The Crown submits that the answers provided to the psychologist are inconsistent with other evidence in the offender's case including the initiative he demonstrates in his charitable works and his enthusiasm for cricket. 14. I reject the submission that the evidence is so inconsistent as to lend little weight to the diagnoses made by the psychologist. True it is that the offender responded that "most of the time" he finds it difficult to work up the initiative to do things and "most of the time he is unable to become enthusiastic about anything". However these answers are not necessarily inconsistent with his capacity to continue in his charitable works and his enthusiasm for the sport of cricket. The answers provided to the psychologist do not suggest that he is incapable, at all times, of demonstrating initiative or becoming enthusiastic. 15. I am not of the view that the offender's depression and anxiety are causally connected to the offending conduct and do not reduce his moral culpability. I accept that he currently suffers from depression and anxiety and his mental health is relevant to an assessment of the weight to be given to his subjective case and the weight to be given to general deterrence. 16. While his mental health issues operate to reduce the weight to be afforded to general deterrence, this is a consideration that remains relevant at least to some extent having regard to the nature of the criminal conduct. This is particularly so having regard to the contents of the Second Reading Speech for the Bill that introduced the offence against s 83D(1) of the Migration Act, the predecessor of the current provision. The Australian Government made clear that it would not tolerate the activities of persons conducting business of the arrangers are false marriages or de facto relationships for migration purposes and that severe penalties were called for. 17. I am not satisfied for the reasons set out above that the offender was the principal of this criminal enterprise, nor am I satisfied that he was conducting it as a commercial activity from which he profited. While general deterrence remains a relevant factor, having regard to his mental health issues, I am satisfied that the weight to be given this consideration should be moderated at least to some degree. 18. The author of the Sentencing Assessment Report assesses the offender as a "medium to low risk of reoffending". However, the weight to be given to specific deterrence is also reduced. Notwithstanding the assessment that he is a medium to low risk of reoffending, he has no relevant prior criminal history. In the years since the last offence, he has not reoffended or come under notice for any criminal conduct. 19. I accept that he is remorseful having regard to his plea of guilty and, importantly, the evidence he has given during the proceedings. He acknowledged the wrongfulness of his conduct and is ashamed and contrite. I am satisfied that he has reasonable prospects of rehabilitation having regard to that remorse and the absence of reoffending. I am also satisfied that he is unlikely to reoffend. 20. In determining his future prospects, I have taken into account the references and certificates that have been tendered in the proceedings. He is described as loving and caring; a good husband and father. Furthermore, he has engaged in charitable works, including for bushfire relief. His efforts in that regard are to be commended. 21. The offender completed a Certificate IV in Accounting in August 2013 and a Diploma of Management from Loura Business College Pty Ltd. It is highly unfortunate that a man who has strived to better himself in the past, and engaged in charitable works, has engaged in this serious criminal conduct. Delay 1. The issue of delay is a pertinent issue in these proceedings. On 20 August 2014, Ms Youssef made comprehensive admissions in relation to the circumstances of the sham marriage she entered into. In January 2015, Mr Prothero also made comprehensive admissions in relation to his sham marriage. In March 2015, Miss Wheeler made admissions in respect of her involvement in this criminal enterprise. On 14 April 2015, Miss Mounser withdrew her sponsorship of Mr Sharma and made comprehensive admissions in relation to the circumstances of her marriage to him in May 2015. 2. In March 2015, a search warrant was executed at the offender's premises. He travelled to India on 1 April 2015 and returned on 19 May 2015, notifying the investigators of his return. He had no contact from investigators until he received the Court Attendance Notices in October 2018, some 3½ years later. 3. This significant delay is unexplained. This is not a case where the delay can be said to be attributed to the complexity of the investigation or to a difficulty in detecting the conduct. As early as 2015, the authorities had statements from intermediaries and participants involved in the criminal enterprise. In March 2015 a search warrant was executed at the offender's premises. He notified the authorities of his return to the country in April 2015 and yet no action was taken. He was not interviewed. He was not arrested. No Court Attendance Notice issued. He was aware that the investigation was on foot because his house had been searched. In those circumstances, I am satisfied that he would have been living under a state of uncertain suspense during the period of delay between March 2015 and October 2018. 4. Thereafter, the offender pleaded not guilty and the proceedings have taken some 18 months to come to finality. The offences are now 6 years old. The delay between the execution of the search warrant and issuing of the Court Attendance Notice (some 3½ years) was not the result of anything done by the offender. There has been absolutely no explanation for that delay. 5. I bear in mind that fairness to the offender requires that weight be given to the progress of his rehabilitation during the period of this delay. He has not reoffended and has demonstrated good rehabilitation. Furthermore, he was left in a state of uncertain suspense for a significant period. 6. The passage of time between the offending conduct and sentence, when lengthy, will often lead to considerations of fairness to the offender in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. In some cases, this can require what might otherwise be quite an undue degree of leniency being extended to the offender: R v Todd (1982) 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59; R v Fahda [1999] NSWCCA 267. 7. Delay which is not attributable to the offender can constitute a powerful mitigating factor. The very fact of the long delay in in instituting the prosecution led to the offender having this matter hanging over his head for some 3½ years. This is a matter rightly called in aid on his behalf. I am satisfied that, in the particular circumstances of this case, delay operates as a significant mitigating factor. Parity 1. Suzanne Akkari was sentenced by Armitage J on 11 October 2019 for one offence of aiding, abetting, counselling or procuring the arrangement of a marriage to obtain permanent residency. The offence to which Ms Akkari pleaded guilty is one of the offences on the s 16BA Schedule in the present proceedings, namely, the marriage between Ms Youssef and K Singh. She pleaded guilty before the Local Court and her sentence was reduced by 25% to reflect utilitarian value of the plea. 2. His Honour found that her role was "considerably below" the role of this offender. She essentially assisted this offender by finding people who were prepared to enter into the a arrangement which, his Honour found, this offender was procuring for profit. She was sentenced to a term of imprisonment for 18 months to be released forthwith on recognisance. 3. I sentenced Jordon-Lee Evans on 3 February 2020. Relevantly, Count 3 in her case related to a charge of aiding, abetting, counselling or procuring the sham marriage between Ms Wheeler and M K Singh (Count 2 in the present case). In respect of that offence, following an application of a 25% discount for the utilitarian value of the plea, I indicated a sentence of 18 months imprisonment. 4. Ms Evans was also sentenced for her involvement in the sham marriage between Ms Mounser and Mr Sharma. That offence constituted Count 4 in her proceedings and constitutes one of the offences on the s 16BA Schedule in the present proceedings. I indicated a sentence of 2 years imprisonment for that offence. 5. The aggregate term of imprisonment imposed upon Ms Evans was one of 2 years 6 months to be released forthwith on recognisance. 6. The principle of parity does have application in the present case. There are a number of distinguishing features that favour the co-offenders. Ms Akkari was sentenced for her involvement in only one sham marriage. Her criminality was significantly below that of the present offender. 7. Although Ms Evans' involvement, both in terms of the duration of the criminal conduct and her actions, was more serious than that of Ms Akkari, her role was below that of the present offender. I am satisfied that this offender played a more significant role which included a degree of autonomy and decision-making that Ms Evans did not have. Further, he coordinated the tasks that were required to ensure the success of the sham marriages. 8. Secondly, each of the co-offenders was sentenced following an application of a 25% reduction in sentence for the utilitarian value of the pleas of guilty. By contrast, this offender's plea was late and attracts a 10% reduction in sentence for its utilitarian value. 9. In sentencing the offender for the substantive offence, I must also have regard to the matters on the s 16BA Schedule. Those offences do not increase the objective seriousness of the substantive offences, but are relevant in increasing the sentences for those substantive offences because of the increased weight to be given to specific deterrence and denunciation. 10. These are all matters that I have taken into account in applying the parity principle. In doing so, I have also taken into account the following matters that favour this offender. 11. Firstly, having found that he did not engage in the conduct for financial reward, the prosecution has failed to establish, as an aggravating factor, a circumstance that I took into account in sentencing Ms Evans. 12. Further (and importantly to my mind), the issue of delay is a pertinent issue in these sentence proceedings that was either not raised or not relied upon to a great extent in the co-offenders' proceedings. 13. The Crown submits that the only appropriate penalty is one of full-time imprisonment. The Crown has provided a table of seven comparable sentences, four of which relate to co-offenders who were dealt with either by way of a recognisance release order pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) or the equivalent of suspended sentences pursuant to s 20(1)(b). 14. In the case of R v McLean [2001] NSWCCA 58, the offender was sentenced for a number of offences including drug importations and money laundering offences. In respect of Count 3, an offence contrary to s 240(1) of the Migration Act, the offender was sentenced to a fixed term of 3 months imprisonment. 15. In R v Miranda [2002] NSWCCA 89, the offender was sentenced for 16 counts contrary to s 281 of the Migration Act and one count contrary to s 234. The offender ran a business as an unlicensed migration agent and made numerous protection visa applications on behalf of his client that made false claims about the circumstances. He was ultimately resentenced to a period of 3 years 10 months imprisonment, to be released after 2 years on recognisance. The criminality involved in that case was much more significant than the present case. In that case, the offender ran a business as an unlicensed migration agent and was personally responsible for making false claims on formal documents. Furthermore, he was sentenced for a total of 17 offences. 16. The last case is that of Asfoor v The Queen [2005] WASCA 126. The offender was sentenced to a 1 year fixed term of imprisonment for one offence contrary to s 234(1) of the Migration Act. 17. In sentencing for federal offences, there is need for sentencing consistency throughout Australia which requires that the sentencing court have regard to relevant sentencing practices throughout the country. The schedule of comparable cases reveals that, in the majority of those cases, a penalty other than full-time imprisonment was imposed. In the three cases where full-time imprisonment was imposed, the period ranged from 3 months to 3 years 10 months imprisonment, the latter being a case that involves significantly greater criminality than the present case. 18. The schedule of comparable cases does not provide a discernible pattern of sentencing practices or a discernible sentencing range. 19. Mr Marr submits that, having regard to the circumstances of this particular case, I would proceed by way other than full-time imprisonment. 20. Having regard to the objective seriousness of the offences and the weight to be afforded considerations of general deterrence (albeit reduced as a result of the offender's mental health issues) and denunciation, I am satisfied that a form of imprisonment is warranted. The question is whether I am satisfied that the term of imprisonment should be served by way of full-time custody. 21. While the objective seriousness of the offences, including the offender's role, requires that a form of imprisonment be imposed, having given the matter great deal of consideration I am not persuaded that the term of imprisonment should be served by way of full-time custody. But for the significant and unexplained delay, the Crown's submission that I proceed by way of full-time imprisonment would have been more compelling. Having regard to the delay, I am satisfied that an otherwise undue degree of leniency should be extended to the offender. 22. Ultimately, a balance must be struck and appropriate weight must be given to all of the factors which must be taken into account in arriving at the appropriate sentence by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357. 23. I intend to proceed by way of an aggregate term of imprisonment: DPP (Cth) v Beattie [2017] NSWCCA 301. The aggregate sentence will reflect a measure of accumulation having regard to the fact that each offence demonstrates discrete offending conduct involving separate and discrete sham marriages. In determining the extent of that accumulation, I have had regard to the principle of parity. Determination 1. The offender is convicted in respect of Counts 1 and 2. Taking into account a 10% reduction in sentence for the utilitarian value of the plea of guilty, I set out the following indicative sentences: 1. Count 1: Taking into account the offence on the s 16BA schedule, the offender is sentenced to imprisonment for 2 years. 2. Count 2: Taking into account the offence on the s 16BA Schedule, the offender is sentenced to imprisonment for 2 years 6 months. 1. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offender is sentenced to an aggregate term of imprisonment of 3 years. 2. The offender is to be released forthwith upon entering a recognisance himself in the sum of $1000, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), with the condition that he be of good behaviour for a period of 3 years commencing today. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2020