New South Wales Court of Criminal Appeal CITATION : R v Dhingra [1999] NSWCCA 344 FILE NUMBER(S) : CCA 60269/99 HEARING DATE(S) : 22/10/99 JUDGMENT DATE : 22 October 1999 PARTIES : Regina v Sanjeev Kumar Dhingra JUDGMENT OF : Meagher JA; James J; Kirby J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0769 LOWER COURT JUDICIAL OFFICER : Mahoney DCJ COUNSEL : M M Cinque - Crown J Galluzzo - Appellant SOLICITORS : DPP (Commonwealth) John Orford & Associates CATCHWORDS : Criminal law and procedure - Commonwealth offences - sentencing - Migration Act ACTS CITED : Migration Act (Commonwealth) DECISION : Appeal allowed 1 IN THE COURT OF CRIMINAL APPEAL 060269/99 Meagher JA James J Kirby J Friday 22 October 1999 REGINA v Sanjeev Kumar DHINGRA JUDGMENT 1 Meagher JA: The Court is now in a position to give judgment. I will ask James J to give the first judgment. 2 James J: This is an application brought by Sanjeev Kumar Dhingra for leave to appeal against a sentence imposed on him in the District court on 7 May 1999 by his Honour Judge Mahoney, after a jury had found the applicant guilty of a charge of contravening s83G(1) of the Migration Act 1958 (Commonwealth). 3 The actual charge against the applicant was that between 13 January 1993 and 1 February 1993 the applicant applied for a stay permit on the basis of satisfying a criterion for a permit because of being married to another person, Angeline Singh, whereas at the time of the application the applicant did not intend to live permanently with the other person in a genuine and continuing marital relationship. 4 The applicant was sentenced by Judge Mahoney to a head sentence of 15 months to date from 31 March 1999 being the date on which the jury returned its verdict, the applicant to be released after 12 months upon entering into a recognisance to be of good behaviour for three months. The applicant was also fined $3,000. 5 By the Migration Legislation (Amendment) Act 1994 certain sections of the Migration Act 1958 were renumbered and amended in some respects. Section 83G of the Act became s243 and was somewhat amended. The maximum penalty for a breach of this provision of the Migration Act was and remains imprisonment for two years. 6 The facts of the offence were concisely stated by the sentencing judge in his remarks on sentence. 7 The applicant came to Australia from India on a visa. He made three attempts to remain in Australia permanently. The first two attempts, in which he claimed to be a refugee and then sought to rely on compassionate grounds, were both unsuccessful. He subsequently made a third attempt, in the course of which he committed the offence under s83G of the Migration Act. On 13 January 1993 he went through a form of marriage with a young woman named Angeline Singh. On 23 January 1993 the applicant returned to India. He applied for permission to enter Australia on a permanent basis, relying on his marriage to Angeline Singh. Angeline Singh took certain steps to facilitate the applicant's application. In October 1993 the applicant re-entered Australia. 8 In his remarks on sentence the sentencing judge referred to some of the subjective circumstances of the applicant, who at the time he was sentenced was 38 years old. The sentencing judge accepted that the applicant was otherwise a person of good character and that while in Australia he had been employed for a considerable period as a security guard by the State Rail Authority of New South Wales. However, his Honour thought that good character was of less significance on a charge of this kind than it would ordinarily be, in that a person of known bad character would be unlikely to be able to gain entry into Australia, in any event. 9 His Honour stated in his remarks on sentence that he considered that the offence was objectively serious, that what the applicant had done struck at this country's right to determine for itself who should be permitted to enter into the country and on what terms and that there was a need for a sentence to be imposed which would serve the purpose of general deterrence. 10 His Honour was informed that there was no previous case anywhere in Australia of a person being sentenced for a contravention of s83G of the Migration Act. His Honour was referred to a decision of this Court in R v Troutman (unreported, Court of Criminal Appeal 7 March 1997). Troutman and a co-offender had been convicted and sentenced for a conspiracy to defeat the execution of the Migration Act. 11 There have been further court proceedings since the applicant was sentenced by Judge Mahoney. On 29 July 1999 Levine J granted the applicant bail pending the hearing of this appeal. It was a condition of the grant of bail that the applicant be released into the custody of officials of the Department of Immigration & Multicultural Affairs and be kept in the Villawood Immigration Detention Centre. Pursuant to the grant of bail the applicant was released into the custody of officials of the Department and placed in immigration detention at the Detention Centre. When he was so released he had served three months and 29 days of his sentence. 12 On 14 September 1999 the applicant commenced proceedings in the Federal Court, seeking certain declarations and an order in the nature of habeas corpus directed to the Minister for Immigration. Certain preliminary questions have been decided in those proceedings in the Federal Court, including that the applicant was not an "unlawful non-citizen" under s243(2) of the Migration Act. The proceedings in the Federal Court have not yet been fully disposed of. 13 On 11 October 1999, on the application of the applicant and without any opposition by the Crown, the conditions on which the applicant had been granted bail were varied, so as to delete the condition requiring the applicant to be released into the custody of officials of the Department and be kept at the Detention Centre. The applicant was released from the Detention Centre on 12 October 1999. He had spent a total of two months 14 days in the Detention Centre. 14 Two principal submissions were made by counsel for the applicant in his written submissions. It was submitted that the sentence imposed on the applicant was manifestly excessive. It was further submitted that there was such a disparity between the sentence passed on the applicant and the sentences passed by the same sentencing judge on the co-offenders, Angeline Singh and her mother Maya Singh, as to give rise to a legitimate sense of grievance in the applicant. A further submission which was made on the hearing of the application was that the minimum term of the sentence passed by his Honour bore too high a proportion to the total length of the sentence. 15 In my opinion, the first submission should be upheld. The sentence passed on the applicant was manifestly excessive, even after taking into account the evident purpose of s83G and the need for general deterrence, and the appeal should be upheld on this ground. 16 His Honour imposed a head sentence of 15 months. In his remarks on sentence his Honour said that, in fixing the sentence, he had taken into account "the fact of the Sentencing Act in New South Wales, which precludes a prisoner from looking forward to remissions". In other words, his Honour, as he was required to do, took into account s16G of the Commonwealth Crimes Act. It is generally accepted that the discount which should be given under s16G in order to allow for the absence of remissions in New South Wales should be approximately one-third. When a discount of this order is added on to the head sentence imposed by his Honour, one arrives at a head sentence which is close to the maximum term of imprisonment which may be imposed for a contravention of s83G, that is two years. His Honour, while observing that the offence was serious, did not say anything in his remarks on sentence to suggest that he regarded the offence as being in, or close to, the worse class of offence under s83G. Apart from being imprisoned, the applicant was, of course, also fined the not insubstantial amount of $3,000. 17 As I have already indicated, the sentencing judge was referring to the sentence in the matter of Troutman. Troutman was sentenced to a sentence of 12 months with a recognisance release period of six months, after being found guilty by a jury of conspiring to defeat the execution of the Migration Act. Troutman had entered into a conspiracy to procure arranged marriages, so that immigration applications could be made with a view to deceiving departmental officers into recommending or approving the grant of resident status in Australia. Troutman's criminal conduct was considerable. The conspiracy was carried into execution over a number of years. There were a number of arranged marriages and Troutman benefited financially from the carrying out of the conspiracy. In the course of carrying out the conspiracy, he recruited Justices of the Peace to falsely attest signatures on documents. Troutman stood trial and showed no contrition. 18 It may be that the sentence passed on Troutman was lenient. Indeed, Hulme J, who delivered the leading judgment in the Court of Criminal Appeal said:- "the sentencing judge would have failed in his duty if he had not imposed a sentence, at least as long as he did". The sentence passed on Troutman may have been lenient and it cannot be said that Troutman's case is strictly comparable with the present case. Nevertheless, the sentence passed in Troutman does, in my opinion, emphasise the severity of the sentence passed on the present applicant. 19 It is difficult to compare the sentence passed on the applicant with the sentences passed on Angeline Singh and Maya Singh. Angeline Singh was sentenced for one offence under s83D(1) of the Migration Act and one offence under s83G. For the offence under s83D she was sentenced to a head sentence of three years with a recognisance release order operating after six months. For the offence under s83G she was sentenced to a head sentence of 15 months, with a recognisance release order after three months. In accordance with the Crimes Act, the sentencing judge made a single recognisance release order, to take effect after six months. 20 Maya Singh was sentenced for two offences under s83D of the Migration Act. She was sentenced to a head sentence of three years, with a recognisance release order to take effect after three months. 21 As I have said, the sentences passed on the so-called co-offenders are difficult to compare with the sentence passed on the applicant, having regard (inter alia) to their dual offences, the inclusion of offences under a different section of the Migration Act (s83D) which carried a higher maximum penalty and their different subjective circumstances, but those sentences do tend to suggest that the applicant was treated severely. 22 The submission that the minimum term fixed by his Honour was disproportionately high at 80 percent of the head sentence should also be accepted. It is most unusual for a sentence under the Commonwealth Crimes Act to contain a non-parole period or a minimum term which bears such a high proportion to the length of the head or total sentence. 23 I am, accordingly, of the opinion that leave to appeal should be granted and that the appeal against sentence should be allowed and that the prison sentence imposed by Judge Mahoney should be quashed. 24 It is necessary for this Court to re-sentence the applicant. As I have noted, the applicant served a period of three months 29 days in custody in prison and spent a period of two months 14 days in immigration detention in the Villawood Detention Centre, being a type of custody which, while not fully comparable with custody in prison, imposed substantial restraints on the applicant. If the applicant was to be returned to custody in prison it would be for only quite a short period. The applicant has been fined $3,000. 25 In the special circumstances of this case, I would be minded to impose a fixed term of imprisonment equivalent to the period of custody actually served by the applicant in prison, that is to a fixed term of imprisonment of three months 29 days, to take effect from 31 March 1999. It will be apparent that that sentence has already been fully served. 26 MEAGHER JA. I agree 27 KIRBY J. I also agree. 28 MEAGHER JA: The orders as proposed by James J will, therefore, be the orders of the Court. 29 JAMES J: The sentence of the Court will need to be explained to the applicant by his counsel. ********** 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. 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