Atilgan v The Queen

[2018] NSWCCA 5

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Atilgan v R [2018] NSWCCA 5
Hearing dates:	22 November 2017
Decision date:	07 February 2018
Before:	Macfarlan JA at [1] Fullerton J at [2] Button J at [3]
Decision:	(1) Leave to appeal against sentence granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – recklessly dealing with proceeds of crime – whether sentencing judge erroneously sentenced the applicant for a more aggravated offence featuring knowledge – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	R v De Simoni (1981) 147 CLR 383
Category:	Principal judgment
Parties:	Zekimurat Atilgan (Applicant) Regina (Respondent)
Representation:	Counsel: P Lange (Applicant) N J Adams (Respondent)   Solicitors: Hanna Legal (Applicant) Solicitor for the Public Prosecutions (Respondent)
File Number(s):	2015/265393
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 May 2017 Before: Blackmore SC DCJ File Number(s): 2015/00265930

1. MACFARLAN JA: I agree with Button J.

2. FULLERTON J: I agree with Button J.

3. BUTTON J:

Introduction

4. Mr Zekimurat Atilgan (the applicant) pleaded guilty in the Local Court to two offences against s 193B(3) of the Crimes Act 1900 (NSW). That subsection is as follows: “A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.” The subject of one count was a sum of $200,050. The subject of the other count was a sum of $250,000. The maximum penalty for the offence is imprisonment for ten years.

5. The applicant was committed for sentence, and came before Blackmore SC DCJ on 4 May 2017. I shall recount the objective and subjective features of the matter very briefly later in this judgment, when I come to review the proceedings on sentence (POS) and the remarks on sentence (ROS). At this stage, it suffices to say that his Honour rejected the proposition that any sentence other than full-time imprisonment was open.

6. With regard to the offence featuring the lesser sum, a head sentence of two years and six months to commence on 3 May 2017 was imposed, with a non-parole period of one year six months. With regard to the offence featuring the greater amount of money, a head sentence of two years and nine months to commence on 3 August 2017 was imposed, with a non-parole period of one year and six months.

7. In other words: the degree of accumulation between the two sentences was six months; the resultant total head sentence was imprisonment for three years; the total non-parole period was one year and nine months; and, clearly enough, special circumstances were found that led to a marked adjustment in the ratio between the total non-parole period and the total head sentence.

Proposed ground of appeal against sentence

8. Leave to appeal to this Court has been sought, relying on the following ground: “His Honour erred by taking into account, in breach of the principle expressed in R v De Simoni (1981) 147 CLR 383, that the applicant had “involved himself” in a “drug transaction”.”

9. In written and oral submissions, counsel for the applicant explained that the ground should be understood as a complaint that, although the learned sentencing judge was sentencing the applicant for an offence founded upon the mental element of recklessness, in fact his Honour erroneously sentenced the applicant for an offence founded on the mental element of knowledge.

10. In that regard, reliance was placed upon the two offences to be found in ss 193B(1) and 193B(2) of the Crimes Act, which form a structure of more aggravated versions of the offence of recklessness to which the applicant pleaded guilty: the offence in s 193B(1) being founded on knowledge and an intention to conceal, and the offence in s 193B(2) being founded on knowledge.

Summary of proceedings on sentence

11. Because the submissions in support of the ground chiefly relied upon what his Honour said in the proceedings on sentence and the remarks on sentence, it is necessary first to summarise the salient features of the proceedings on sentence in some detail.

12. They commenced with senior counsel then appearing for the applicant (defence counsel) indicating to his Honour that a non-custodial outcome would be sought.

13. Thereafter the “Crown bundle” was tendered. It featured the well-known document entitled “Crown Sentence Summary”, a notice of committal, an agreed statement of facts, the very minor criminal record of the applicant, and a generally favourable pre-sentence report. The Crown case then closed.

14. The agreed statement of facts showed that, on 21 July 2015, the applicant met a man at the car park of a McDonald’s fast food restaurant at Waterloo. The applicant introduced himself by a false name. He requested that the location be changed because of the surveillance cameras at the restaurant. The other man declined that request. The applicant left his parked vehicle and entered the vehicle occupied by the other man. The applicant had with him a sports bag, and he placed it on one of the seats of the car of the other man. The applicant expressed a concern that “things don’t look right”. The other man provided the applicant with a five dollar note, the serial number of which had previously been provided to a high-level drug dealer in the United States. The applicant showed the other man a BlackBerry mobile device, and enquired whether the other man possessed one. Eventually, the applicant left the vehicle of the other man, where the sports bag and its contents remained.

15. The contents of the bag were subsequently found to be two heat-sealed bags containing Australian currency totalling $200,050.

16. Unfortunately for the applicant and the drug dealer, the other man was in fact an undercover police officer: the provision of the serial number of the five dollar note to the drug dealer in the United States had been facilitated and closely monitored by Australian police and the Federal Bureau of Investigation. Australian police also closely monitored the meeting between the applicant and the undercover operative in the car park of the restaurant.

17. On 28 July 2015, a very similar modus operandi was adopted: the applicant availed himself of a new mobile phone, in order to make arrangements; the applicant and the same undercover operative met in the car park of a liquor store; the serial number of a five dollar note was used in an effort to establish bona fides; and the applicant delivered two fabric bags that contained $250,000 in Australian cash. Again, all of that was closely monitored.

18. The applicant was arrested at his home some months later. Found in a safe was the passport of the applicant, along with $12,750 in cash.

19. The criminal record of the applicant showed that he had been born in March 1983. He had intersected with the criminal justice system only by way of two driving offences, each of which had resulted in a fine and disqualification, and an offence of malicious damage, which had resulted in the imposition of a bond.

20. The pre-sentence report spoke of the happy upbringing and education of the applicant; his settled romantic relationship at the time of the preparation of the report; his claim that he had became depressed after the breakdown of his marriage some time before; his further claim that his actions were, he believed, to do with repayment of a gambling debt; and a generally favourable assessment of his prospects of rehabilitation.

21. The defence case featured a psychological report pertaining to the applicant; medical reports pertaining to the ill-health of his parents; and a number of references prepared by friends and relatives.

22. The psychological report spoke of an expression of remorse by the applicant; his unremarkable background; his abuse of cocaine, concomitant with the depression resulting from the breakdown of his marriage; the fact that the applicant had consulted a psychologist on a number of occasions in the past; the poor health of his parents; and an ultimate finding that the applicant was anxious and depressed.

23. The medical reports showed that the father of the applicant was physically unwell, and the mother of the applicant psychologically unwell.

24. The character references spoke of the solid work ethic of the applicant; his closeness to his family; the high regard in which the applicant was held by others; how out of character it was for the applicant to have offended in this way; and the fact that, at the time, the applicant was suffering enormously as a result of his separation from his wife.

25. Thereafter, the sister of the applicant gave brief oral evidence, in which she confirmed the correctness of the reference that she had provided, and made clear that the applicant was an important carer of her own children. The defence case then closed.

26. In his plea in mitigation, defence counsel invited attention to the fact that (as I have said) the pre-sentence report recounted that its author had been told by the applicant that, at the time of the commission of the offences, the applicant believed that he was assisting an acquaintance to repay money that the acquaintance had been loaned by a creditor, in order to repay a gambling debt of the acquaintance owed to a third party (at POS 5.15).

27. His Honour remarked (at POS 5.19-5.22), “Why would I accept that? This was a case of international drug dealing of the highest order. And he was involving himself at a very high order in paying cash to international drug dealers or getting involved with international drug dealers.”

28. A little later (at POS 5.30), his Honour said, “And he was dealing in drugs, and he was aware. I have no doubt he was aware – I don’t have to find that, but I have noted he was aware he was involved in drugs, and this was a very, very sophisticated arrangement.”

29. His Honour also made it clear that, at that stage at least, his Honour regarded a sentence of full-time imprisonment as inevitable.

30. In those circumstances, defence counsel was granted leave to reopen his case, and called the applicant to give oral evidence. The following exchange occurred in evidence-in-chief (at POS 9.23-9.33):

“Q. What did you think the money related to?

A. A gambling debt that he told me that he couldn’t see the person because he was scared…

…

Q. Did it ever occur to you it might be drugs?

A. No, I – –

Q. Proceeds of?

A. No, no. I would never sell drugs or do anything relating to drugs…”

31. A little later in evidence-in-chief, the applicant reiterated that he believed that the sums of money that he was handing over related to a gambling debt.

32. In cross-examination, his Honour asked the applicant a number of questions. One of them confirmed that the applicant was paid $5,000 for supplying the sums of money (at POS 12.39).

33. In light of the fact that the applicant was asserting on oath that, at the time he committed the physical elements of the offence, he had believed that he was merely assisting in the settlement of a debt to do with gambling as opposed to a crime - thereby seemingly traversing the pleas that he had entered - his Honour (with respect, understandably) enquired (at POS 14.26-14.27):

“Q. Well, why are you pleading guilty?

A. I believe I was reckless and the seriousness of the offence.”

34. Remarkably, in cross-examination of the applicant by the advocate appearing for the Crown, the following exchange occurred (at POS 16.11-16.13):

“Q. I put it to you that the answers that you have been giving today are an attempt to minimise your criminality.

A. Yes.”

35. In re-examination, the following exchange occurred between the applicant and defence counsel (at POS 17.7-17.9):

“Q. Did you think you are pleading guilty to being reckless in relation to the proceeds of crime relating to something to do with gambling?

A. Yes.”

His Honour immediately enquired (at POS 17.11) “What would that be?”

36. A little later (at POS 17.20-17.25), his Honour said to defence counsel “You have to be recklessly indifferent to a crime. You can’t be recklessly indifferent to not a crime…I was recklessly indifferent to buying milk. It’s not a crime.”

37. Later, in discussion with defence counsel, his Honour said (at POS 18.1-18.3) “…when he pleads guilty to recklessly being involved in dealing in the proceeds of crime, there needs to be a crime.”

38. A little later, his Honour said (at POS 18.37-18.38) “It is more like duped in the way in which a courier is duped, and you don’t necessarily get that much of a lesser sentence.”

Summary of remarks on sentence

39. Turning secondly to engage in the same exercise with regard to the remarks on sentence, on page 1 his Honour said “The offender has pleaded guilty to two offences of dealing with the proceeds of crime, knowing that they were the proceeds of crime.” I interpolate that counsel for the applicant made it clear in oral submissions that that erroneous statement is not relied upon, and was conceded to be nothing more than a slip by a sentencing judge who was delivering an ex tempore judgement in an extremely busy list.

40. Having recounted the agreed facts, his Honour said the following (at ROS p 4): “It is clear from the facts that this is a very serious case. To my mind, the only reasonable finding in this case is that the offender was reckless to involve himself in large-scale drug transactions.”

41. Later at page 4 of the remarks on sentence, his Honour said “The manner in which the transactions were carried out, including a number of indicia common in drug transactions, make it clear in my view that what he was involving himself in was a drug transaction. It is possible some other offence could have been contemplated, but the offender’s evidence was that he accepted at face value that the money was to pay off a gambling debt. The objective facts contradict that count [scil. account].”

42. At page 5 of the remarks on sentence, his Honour said “With respect to the offender, it is clear from the facts that he was involving himself in something significantly illegal. He has admitted that he was reckless as to whether he was involved in dealing with the proceeds of crime. Frankly, it is obvious that he was from the agreed facts…The offender may well have been a dupe, someone who was himself not directly involved in drug dealing. His position is one that might be equated to that of a drug courier, but it is because there are people such as this offender who are prepared to act illegally that allow drug dealers to avoid detection.”

43. In the following paragraph, his Honour said the following “In my opinion, the fact that the offence to which the offender was reckless with regard to being a drug offence is a relevant factor, as it aggravates the seriousness of the offending and further enlivens the need for the offence to reflect general deterrence.”

44. Thereafter, his Honour recounted the subjective features in a way favourable to the applicant. They included the following finding (at ROS p 6): “The offences were, in my view, largely opportunistic. The offender was able to make some quick cash without actually thinking very carefully about what he was involving himself in. ”

45. The remarks on sentence conclude with the imposition of the two sentences, in which process his Honour referred twice to the mental element of the offences as being having acted recklessly.

Summary of written and oral submissions in support of the ground

46. As I have said, at the hearing it was made clear that the error said to have been committed by the sentencing judge was sentencing the applicant for an offence of knowingly dealing with proceeds of crime, rather than doing so recklessly. In light of the statutory structure to be found in s 193B of the Crimes Act, that was said to infringe against the very well-known principal in R v De Simoni, which may be summarised as being that an offender cannot be sentenced for an aggravated version of the offence of which he or she has been convicted.

47. It was said that the references in the remarks on sentence to the applicant “involving himself” in drug dealing were ambiguous, and it was legitimate to resolve that ambiguity by recourse to the proceedings on sentence.

48. As for the latter, emphasis was placed on the extracts that I have provided above, inviting attention in particular to the references to the applicant “involving himself at a very high order in paying cash to international drug dealers or getting involved with international drug dealers”, and “…he was dealing in drugs, and he was aware. I have no doubt he was aware…”

49. It was said that those parts of the proceedings on sentence illuminate the use of the word “involve” in the remarks on sentence, and show that his Honour must be taken to have meant that the applicant was facilitating the supply of prohibited drugs, well knowing that that was what he was doing.

50. It was also said that the references to the applicant being similar to a drug courier, both in the remarks on sentence and the proceedings on sentence, establish the same error.

51. In summary, it was submitted that the applicant had been sentenced for an offence more aggravated than that to which he had pleaded guilty, thereby demonstrating a patent error in the proceedings at first instance that calls for intervention.

Determination

52. I do not accept the fundamental submission of counsel for the applicant. To the contrary, I am affirmatively satisfied that the applicant was sentenced by his Honour for an offence of recklessness, not knowledge. That is so for the following reasons.

53. First, as I have demonstrated by my extracts, throughout the remarks on sentence his Honour repeatedly referred to the correct mental element of recklessness. That occurred explicitly on four occasions. It also occurred implicitly on two occasions, when his Honour referred to the applicant having acted “without actually thinking very carefully about what he was involving himself in”, and to the concept of contemplation, as opposed to knowledge.

54. Secondly, the concept of involvement does not necessarily connote knowledge, or indeed any active physical or mental role. To give an example from everyday English that springs readily to mind, one can speak of a passenger on a bus being “involved” in a motor vehicle accident, without that person having played any physical or mental role in the events leading up to the collision. I do not accept that the references in the remarks on sentence to the involvement of the applicant in a particular offence are to be read as connoting a finding of knowledge on his part about that offence.

55. Thirdly, the whole question of the state of mind of the applicant at the time he committed the physical elements of the offences was, in my respectful opinion, thrown into confusion when he gave evidence that seemingly traversed his plea, and thereafter senior counsel then appearing for him sought to maintain that position.

56. As was conceded by counsel for the applicant at the hearing of before us, the pleas of guilty of the applicant publicly and solemnly accepted that, at the time he committed the physical elements of the offences, he foresaw the possibility that the monies were the proceeds of crime. Patently, monies that are repaying a gambling debt cannot (without more) constitute the proceeds of crime, whether objectively (that is, in reality) or subjectively (that is, in the mind of someone); that is for the simple reason that gambling is not illegal.

57. In other words, in my opinion what was said in the remarks on sentence about the state of mind of the applicant was a resolution of that confusion. It was also an unexceptionable finding that the offence was made more objectively serious because the crime of which the monies were proceeds was itself a very serious offence. It was not an adverse and aggravated finding of knowledge beyond the mental element of recklessness.

58. Fourthly and finally, I do not consider that, in likening the applicant to a drug courier in the remarks on sentence, the sentencing judge was approaching him on the basis that he affirmatively knew that he was involved in a drug offence. Rather, I interpret what his Honour said as simply being a favourable finding that the applicant was a person of otherwise good character, who was playing a menial but essential role in a much broader criminal operation, which featured principals who were much more sophisticated and much better remunerated. And in any event, the reference to the possibility of the applicant having been a “dupe” is flatly inconsistent with an erroneous finding of knowledge on his part.

52. In short, even accepting for the sake of argument only that one should have recourse in this particular case to the proceedings on sentence in order to understand the true import of the remarks on sentence, I am affirmatively satisfied that the applicant was sentenced for the offences to which he pleaded guilty, and for nothing beyond them.

Proposed orders

60. The ground was arguable, although unpersuasive. I therefore propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

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Decision last updated: 07 February 2018