Sanjeev Kumar Dhingra v Regina [1999] NSWCCA 359

New South Wales Court of Criminal Appeal CITATION : Sanjeev Kumar Dhingra v Regina [1999] NSWCCA 359 FILE NUMBER(S) : CCA 060269/99 HEARING DATE(S) : Friday 22 October 1999 JUDGMENT DATE : 22 October 1999

PARTIES : A: Sanjeev Kuma Dhingra R: Regina JUDGMENT OF : Meagher JA at 28; James J at 2; Kirby J at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0769 LOWER COURT JUDICIAL OFFICER : Mahoney J

COUNSEL : A: J Galluzzo R: MM Cinque SOLICITORS : A: Philip Sim John Orford & associates R: Ann O'Toole Commonwealth Department of Public Prosecutions CATCHWORDS : disingenous marriage to gain residency; sentence manifestly excessive; absence of remiss not adequately considered in sentencing Migration Act 1958 (Commonwealth) ACTS CITED : Migration Legislation (Amendment) Act 1995 Sentencing Act (NSW) Crimes Act 1914 (Commonwealth) CASES CITED: Regina v Troutman unreported, CCA, 7 March 1997 DECISION : Leave to appeal granted; Appeal against sentence allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

060269/99

MEAGHER JA BRUCE JAMES J KIRBY J

FRIDAY 22 OCTOBER 1999 SANJEEV KUMAR DHINGRA v REGINA (COMMONWEALTH) 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 BRUCE 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 s.83G(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 that the permit gave 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 - 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. 5 By the Migration Legislation (Amendment) Act 1994, previous sections of the Migration Act 1958 were renumbered and amended in some respects. Section 83G of the Act became s.243 and was somewhat amended. In final form of the judgment, I will quote s.83G(1): "The maximum penalty for a breach of this provision of the Migration Act was and remains imprisonment for two years."