Kapila v R

[2024] NSWCCA 48

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kapila v R [2024] NSWCCA 48

Hearing dates:

29 November 2023

Date of orders:

05 April 2024

Decision date:

05 April 2024

Before:

Harrison CJ at CL at [1]
Button J at [2]
Weinstein J at [3]

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred by double counting a Form 1 offence when assessing the objective seriousness of a count to which it did not attach – facts and circumstances of a Form 1 offence may be considered to provide context – no demonstrable error – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 93T, 192E(1)(b), 193C(1), 344A(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2), 32(1), 33(1)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:

Ahmad v R [2022] NSWCCA 144

Andrew Smith v R [2013] NSWCCA 209

Dang v R [2014] NSWCCA 47

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

Lonsdale v R [2020] NSWCCA 267

Mulato v R [2006] NSWCCA 282

Ragg v R [2022] NSWCCA 150

RL v R [2018] NSWCCA 274

RO v R [2019] NSWCCA 183

Singh v R [2021] NSWCCA 96

Category:

Principal judgment

Parties:

Nitin Kapila (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Trevallion (Applicant)
V Garrity (Respondent)

Solicitors:
Blaxland Criminal Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/224573

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 February 2023

Before:

O’Brien AM DCJ

File Number(s):

2019/224573

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty in the District Court to an offence of deal with property to the value of $100,000 or more where there are reasonable grounds to suspect that the property was the proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW) (count 1) and an offence of attempt to dishonestly obtain a financial advantage by deception contrary to ss 192E(1)(b) and 344A(1) of the Crimes Act (count 2). A further offence of knowingly participate in a criminal group contrary to s 93T of the Crimes Act was taken into account on a Form 1 at the applicant’s request, which attached to count 2.

After applying a 5% discount for his pleas of guilty, O’Brien AM DCJ sentenced the applicant to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months. His Honour specified indicative sentences of 22 months for count 1 and, taking into account the form 1 offence, 4 years for count 2.

The applicant appealed on a single ground that the sentencing judge erred in the manner in which the further offence on the Form 1 was taken into account. In particular, the applicant argued that the sentencing judge engaged in ‘double counting’ of the Form 1 offending by:

(a)   Having regard to conduct the subject of the Form 1 offence, which attached to count 2, in assessing the objective seriousness of the offence on count 1; and

(b)   Having done so, by also taking the Form 1 offence into account in passing sentence on Count 2.

The applicant relied particularly on exchanges between the Crown and the sentencing judge during the course of the sentencing hearing in support of his appeal.

The Court (Weinstein J, Harrison CJ at CL and Button J agreeing) held, granting leave to appeal but dismissing the appeal:

(1) It is permissible for the circumstances of a Form 1 offence to be considered with respect to a charged offence to which it does not attach by way of context, but care should be taken by a sentencing judge not to double count by increasing the objective gravity of the offence to which it does not attach. On a fair reading of his Honour’s remarks, he did not take into account the Form 1 offending to elevate the objective seriousness of count 1: per Weinstein J at [40]-[41] (Harrison CJ at CL agreeing at [1]; Button J agreeing at [2]).

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81; RL v R [2018] NSWCCA 274; Ragg v R [2022] NSWCCA 150 cited, Singh v R [2021] NSWCCA 96; RO v R [2019] NSWCCA 183 referred to.

(2) Here, the Form 1 offending was the yoke which united the charged offending. To have ignored it would have made his Honour’s remarks artificial and disjointed: per Weinstein J at [41] (Harrison CJ at CL agreeing at [1]; Button J agreeing at [2]).

(3) The applicant endorsed the sentencing judge’s approach, given his agreement to plead guilty to counts 1 and 2 and to admit guilt to the further offence on the Form 1 which he asked the sentencing judge to take into account when dealing with him for the principal offence of count 2: per Weinstein J at [42] (Harrison CJ at CL agreeing at [1]; Button J agreeing at [2]).

Andrew Smith v R [2013] NSWCCA 209 cited.

(4) Any complaint by the applicant in support of the ground of appeal that relies upon the reading of the transcript of the sentencing hearing and his Honour’s responses to propositions put in oral argument should be rejected: per Weinstein J at [36] (Harrison CJ at CL agreeing at [1]; Button J agreeing at [2])

Dang v R [2014] NSWCCA 47 cited, Ahmad v R [2022] NSWCCA 144 and Lonsdale v R [2020] NSWCCA 267 referred to.

JUDGMENT

1. HARRISON CJ at CL: I agree with Weinstein J and with the orders he proposes.

2. BUTTON J: I agree with Weinstein J.

3. WEINSTEIN J: The applicant, Nitin Kapila, seeks leave to appeal against the sentence imposed on him in the District Court pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). On 24 February 2023, O’Brien AM DCJ sentenced the applicant to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months for the following offences:

1. Deal with property to the value of $100,000 or more where there are reasonable grounds to suspect that the property was the proceeds of crime, namely $1,211,897, contrary to s 193C(1) of the Crimes Act 1900 (NSW) (Crimes Act) for which the maximum penalty is five years imprisonment and for which there is no standard non-parole period (count 1); and

2. Attempt to dishonestly obtain a financial advantage by deception, namely $2,500,000, contrary to ss 192E(1)(b) and 344A(1) of the Crimes Act for which the maximum penalty is 10 years imprisonment and for which there is no standard non-parole period (count 2).

4. An offence of knowingly participate in a criminal group contrary to s 93T of the Crimes Act was included on a notice filed by the prosecutor under
   s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Form 1, and the Sentencing Act respectively). It was taken into account at the applicant’s request pursuant to s 33(1) of the Sentencing Act and attached to count 2.

5. The sentencing judge applied discounts of 5% for the applicant’s pleas, which were entered five days before his trial was listed to commence: s 25D(2) of the Sentencing Act. His Honour specified 22 months imprisonment as the indicative sentence for count 1. For count 2, he specified 4 years imprisonment as the indicative sentence, taking into account the Form 1 offence. The sentence was backdated to commence on 23 October 2022 to reflect 124 days of pre-sentence custody. The applicant’s head sentence will expire on 22 April 2027. He will be eligible for release to parole on 22 April 2025.

6. The applicant relies on one ground of appeal:-

1. The sentencing judge erred in the manner in which the further offence on the Form 1 was taken into account. In particular, the sentencing judge engaged in ‘double counting’ of the Form 1 offending by:

1. Having regard to conduct the subject of the Form 1 offence, which attached to count 2, in assessing the objective seriousness of the offence on count 1; and

2. Having done so, by also taking the Form 1 offence into account in passing sentence on Count 2.

7. For the following reasons, I would grant leave to appeal but dismiss the appeal.

Facts of the offending and the sentencing proceedings

8. The applicant was charged with large scale money laundering activity with five co-accused, and he was committed to stand trial in the District Court at Parramatta on 26 September 2022. On 21 September 2022, he signed a 35 page document entitled Statement of Agreed Facts (the agreed facts) and pleaded guilty to counts 1 and 2. On that date he also signed the Form 1.

9. The date range for count 1 was between 1 November 2018 and 14 December 2018. For count 2, the date range was between 17 October 2018 and 9 November 2018. The date range for the Form 1 offence was between 1 October 2018 and 31 December 2018. It can be observed that the count 1 and 2 offending took place during the period in which the offender admitted that he knowingly participated in a criminal group. In other words, there was overlap between the count 1 and 2 offending, and both took place during the time that the applicant knowingly participated in a criminal group.

10. Early in his Honour’s sentencing judgment he said the following about the Form 1 offence:-

“The offender also asks that I take into account on a Form 1 a further offence of knowingly participating in a criminal group, and I am satisfied that it is appropriate to do so. This offence attaches to the attempt obtain financial advantage by deception matter and is an offence contrary to section 93T(1) of the Crimes Act 1900 and carries a maximum penalty of 5 years imprisonment. Having availed himself of the Form 1 arrangement, the offender has the benefit of not facing separate punishment for this additional offence. It does however impinge upon the sentence to be imposed for the principal offence to which it attaches, by requiring an appropriate increase in the sentence that would otherwise be imposed. This is to reflect the need for greater weight to be attached to specific deterrence arising from the offender’s criminal behaviour and the community’s entitlement to retribution for this additional offence.”

11. The agreed facts were comprehensively summarised by the sentencing judge in his remarks on sentence. His Honour’s summary, distilled from the agreed facts, is not challenged, and I extract it in full:-

“In 2015 the offender was working as a self-employed shower screen/ wardrobe installer. He operated a company called Kapila Enterprises Pty Ltd. During 2015 the offender became acquainted with Singh and a male who I will refer to as MT. MT and his wife … operated a security and cleaning services business at Guildford.

In 2018 MT and El-Kotob entered a joint criminal enterprise and agreed to launder and transfer to China large sums of money reasonably suspected of being the proceeds of crime. Pursuant to this agreement MT and El-Kotob, with the assistance of others, including this offender, collected large sums of cash, deposited them into corporate bank accounts and then transferred the funds to bank accounts in China disguised as payments for commercial imports. In the period 18 January 2018 to 29 April 2019 more than $100 million was processed in this way. MT and El-Kotob were the principals in the joint criminal enterprise.

The joint criminal enterprise operated by El-Kotob advising MT when funds were ready for collection. MT with the assistance of the offender and others would collect the funds from El-Kotob or others he nominated. The sums of money usually ranged from hundreds of thousands of dollars to $1 million. MT and others including the offender then took the collected cash to MT’s business premises at Guildford where the cash was counted. The funds were then deposited by MT and others including the offender, into various corporate bank accounts and moved between various Australian bank accounts so as to create the appearance of legitimate business activity. The money was then transferred to bank accounts in China using several money remittance/currency exchange agencies in Sydney. The offender and the other participants were paid a commission on the funds collected and transferred to China.

In the initial phase of the joint criminal enterprise before this offender became involved, El-Kotob and MT generally transmitted the funds through a remittance agency called Money Chain Foreign-Exchange Pty Ltd (MCFE). In September 2018 MCFE withdrew its services due to a suspicion that MT was involved in money laundering.

This offender participated in the joint criminal enterprise between 1 October and 31 December 2018, although he had been aware of it from June 2018.

[The offender’s wife’s] involvement included her receiving a monetary reward from MT for allowing her and MT’s companies to be used for the purposes of the joint criminal enterprise. She allowed the office from which their company ran to be used to hold and to count the subject funds prior to them being deposited into business accounts. She occasionally assisted MT with collections, deposits and transfer of funds.

Singh became involved in the joint criminal enterprise in August 2018. He assisted MT with cash collections, the counting of cash and deposits. In October 2018 and following a meeting to which I will shortly refer he established in his name three companies and multiple associated bank accounts which were used for the purpose of laundering funds. He also collected, counted and prepared funds for deposit into the various business accounts. He was paid a commission for his involvement in the joint criminal enterprise.

Thapa’s involvement commenced following his having begun working for MT and [his wife] as an accounts manager in July 2018. He became involved in the joint criminal enterprise in February 2019 at a time after this offender’s involvement had effectively ended. Thapa assisted MT in depositing and transferring funds overseas as well as with cash collections and deposits.

In early October 2018 the offender met with El-Kotob and MT while Singh waited nearby. It was agreed that new companies and bank accounts would be created to enable the joint criminal enterprise to continue. At that time the offender was aware that the funds being collected and transferred to China were reasonably suspected to be the proceeds of crime. At this meeting it was agreed that El-Kotob would pay MT and his associates, including the offender, a 2% commission of all funds that were collected and transferred. MT was primarily accountable to El-Kotob for the money collected.

After this meeting the offender and MT told Singh that El-Kotob would be paying them a 1% commission which would be shared equally between them. This meant in effect that the 2% commission in fact paid was shared by MT and the offender each keeping one half of one percent (that is, 0.5%) and the other at 1% being shared equally between MT, the offender and Singh (that is, 0.33% each).

As a result of the agreement reached in October involving this offender, three new companies were established being, 5AB Import Export, Oasis Protective Services Pty Ltd, and Sovereign Protection Group Holdings Pty Ltd. All of these companies were subsequently used by the offender and others as a vehicle for the laundering of money. In addition 15 new bank accounts were opened to facilitate the ongoing operation of the joint criminal enterprise. None of these companies were involved in any legitimate business activity and their sole purpose was to enable the creation of new corporate accounts which were used to deposit and disguise the funds received from El-Kotob as business funds and then transfer them to China. MT, the offender, and Singh had access to these bank accounts through Internet applications. At the same time, MT, the offender, and Singh sought to resume money transfers to China via MCFE. For this purpose the offender generated fictitious pro forma spreadsheets and invoices. This attempt to again use MCFE was ultimately unsuccessful. In the same period the offender, MT and Singh set up commercial customer accounts with other remittances namely Goldmate Foreign Exchange, Global Trade Money Exchange and Win-Win.

In the period 1 October to 31 December 2018 approximately $10,035,152 was collected, deposited into various corporate accounts and laundered by transfer to China. All these monies were reasonably suspected of being the proceeds of crime. Most of the funds were collected in Sydney although there were two collections in New Zealand where funds were sent to Australian accounts before then being transferred to China.

The offender’s involvement in these ongoing dealings included the following:

a. setting up accounts with money remitters,

b. assisting MT with the collection of cash,

c. counting the cash,

d. completing bank deposit slips,

e. attending at local bank branches and depositing cash,

f. creating fictitious invoices submitted to the money remittance agencies to misrepresent the transfers to China as payments for commercial imports,

g. communicating with the staff of the money remittance companies,

h. coordinating deposits and transfers of funds with MT and Singh,

i. on a number of occasions using an account associated with his company, Kapila Enterprises Pty Ltd to process funds received from El-Kotob,

j. receiving a commission for his services equal to 0.83% of funds collected and transferred to China.

k. Count 1 for which the offender is to be sentenced involves a series of specific transactions totalling $1,211,897. The individual amounts involved in these transactions and the dates upon which they occurred were as follows:

a. 1 November 2018 – $95,000. On this day the offender transferred $95,000 from his own NAB account to an NAB account in the name of his company Kapila Enterprises Pty Ltd. The original source of these funds were a transfer of $20,000 from MT and a cash deposit of $75,000. Later on 1 November 2018 the offender transferred the sum of $95,000 to the NAB account of 5AB Import Export. The funds were subsequently transferred to China.

b. 2 November 2018 – $210,000. On this day the offender attended the NAB branch at Wetherill Park with Singh. Both men made cash deposits. The offender deposited $210,000 in cash into the account of Oasis Protective Services Pty Ltd. Those funds were subsequently transferred to China.

c. 5 November 2018 – $50,000. On this day the offender attended the CBA branch at Flemington markets and deposited $50,000 into the account of Sovereign Protection Group Holdings Pty Ltd. These funds were subsequently transferred to China.

d. 13 November 2018 – $52,643. On this day the offender transferred $52,600 from his NAB account to the Kapila Enterprises account. The original source of these funds was a cash deposit of $56,643. Later on 13 November 2018 the offender transferred the sum of $52,643 to the account of 5AB Import Export following which those funds were transferred to China.

e. 20 November 2018 – $120,000. On this day the offender transferred a total of $120,000 from his NAB account to the Kapila Enterprises account. The original source of these funds were cash deposits. Later on 20 November 2018, the offender transferred this $120,000 to Global Trade Money Exchange and the funds were subsequently transferred to China.

f. 26 November 2018 – $160,000. On this day the offender transferred a total of $160,000 from his NAB account to the Kapila Enterprises account. The original source of these funds were cash deposits. Later on 26 November 2018 the offender transferred this $160,000 to Global Trade Money Exchange and the funds were subsequently transferred to China.

g. 7 December 2018 – $191,454. On this day the offender transferred a total of $191,454 from his NAB account to the Kapila Enterprises account. The original source of these funds were cash deposits. Later on 7 December 2018 the offender transferred $190,000 to the account of 5AB Import Export and the funds were subsequently transferred to China.

h. 12 December 2018 – $80,000. On this day the Kapila Enterprises account received the sums of $45,000 and $35,000 which had been transferred from accounts of two of the companies established following the October meeting earlier referred to, being Oasis Protective Services Pty Ltd and Sovereign Protection Group Holdings Pty Ltd. The origin of these funds were cash deposits. Later on 12 December 2018 the offender transferred $80,000 to Global Trade Money Exchange and the funds were subsequently transferred to China.

i. 14 December 2018 – $252,800. On this day the Kapila Enterprises account received six separate transfers totalling $252,800. Three transfers originated from Oasis Protective Services Pty Ltd and three from Sovereign Protection Group Holdings Pty Ltd. The origin of these funds were cash deposits. Later on 14 December 2018 the offender transferred $230,000 to Global Trade Money Exchange and the funds were subsequently transferred to China. During his dealings with Global Trade Money Exchange, the offender created fictitious invoices which he sent to them to support the transfers made from Kapila Enterprises Pty Ltd.

Count 2 for which the offender is to be sentenced involves an attempt by him and MT to obtain by deception an amount of $2.5 million from the Commonwealth Bank of Australia. In August 2018 MT was approached by a male named Gary Mehta. Mehta told MT that he needed a Commonwealth Bank account to transfer $2.5 million from Singapore to Australia and for that money to then be delivered to Melbourne. MT agreed to assist Mehta in exchange for a 2% commission. MT told the offender about the agreement, and he indicated his willingness to participate in exchange for a 4% commission.

The offender suggested to MT that they use a CBA account in the name of his father, Satish Kapila in respect of which the offender was an authorised signatory. On 19 September 2018 the offender provided the details of his father’s CBA account to MT who then forwarded them to Mehta.

On 30 October 2018, a transfer of $2.5 million was initiated from a Singapore-based HSBC account of two private investors. The transfer was managed on behalf of these investors by a Singaporean investment firm called Stahl Associates. The funds were intended to be invested in a fund operated by a Melbourne based firm, Banner Asset Management.

At the same time and as the result of an email scam, an employee of a Banner Asset Management was misled into believing that the account of the offender’s father was in fact an account held with that firm, and the one into which the investment of $2.5 million was to be paid.

As a result a transfer of $2.5 million was made by the Singapore based investment firm into the account of the offender’s father on 30 October 2018. The offender’s father was living in India and completely unaware of these activities.

On 31 October 2018 the CBA became aware that this transfer may be the result of a scam and placed a hold on the transfer into the offender’s father’s account. The bank also froze the account so that no funds could be withdrawn. On the same day the offender and MT attended the Fairfield branch of the Commonwealth Bank. The offender deposited $25,000 cash into his father’s account and MT deposited $25,000 cash into the account of Oasis Protective Services Pty Ltd.

On 31 October 2018 the offender contacted the Commonwealth Bank by telephone on three occasions and spoke to several employees in the bank’s fraud team in an attempt to lift the freeze on his father’s account and complete the transfer of the $2.5 million. His calls included him posing as his father and representing that the funds were his and that they were a return on an overseas investment. During these telephone calls bank staff provided the offender with an email address to which he could send documentation confirming ownership of the $2.5 million.

Later that evening there was an exchange of messages between MT and Mehta. In those MT provided Mehta with details of Satish Kapila’s email address and Mehta provided MT with details of the originating Singapore account and a copy of an email from the investment adviser indicating that HSBC had been instructed to transfer the funds, and that they should arrive within a day.

On 1 November 2018 the offender again spoke to CBA staff. He told them that he had been contacted by the company transferring the funds to him from Singapore, that he understood some documents were required and that he would provide those documents to them that day. Following this call the offender sent an email from an account in his father’s name to the CBA attaching an email from the Singaporean investment adviser confirming the transfer. In this email the offender also provided details of the customers on whose behalf the transfer of $2.5 million had been made and the details of the originating HSBC account which had earlier been provided by Mehta to MT.

After sending the email the offender again called the CBA fraud department posing as his father Satish. He told staff that his business partner in Singapore had informed him that the funds had been transferred and that he intended to use the funds to purchase shares in a company. The bank staff insisted on documentation being provided to substantiate the investment.

On 2 November 2018 the offender sent his father in India a message attaching the signature page of a document. He asked his father to sign the page and return it. He did so. The pages signed by Satish Kapila was the signature page of a document titled “Australian Developments Group Holdings Pty Ltd and Satish Kumar Kapila – sale of shares agreement”. The document purported to be a contract for the purchase of 50% of the shares in the company at a price of $2.5 million. At the time, MT was a director of Australian Developments Group Holdings Pty Ltd. Later that same day the agreement was signed by MT. His signature was witnessed by the co-offender Singh. Satish Kapila’s signature was purportedly witnessed by “Nick Kapi”, the offender.

On the evening of 2 November 2018 the offender sent the fictitious signed contract to the Commonwealth Bank, purporting to explain the $2.5 million transfer to his father’s account.

On 6 November 2018 the offender attended the Fairfield branch of the CBA. He successfully withdrew the $25,000 he had deposited on 31 October 2018 and then enquired about the transfer of the $2.5 million. The offender initially spoke to an employee at the branch. That employee called the CBA fraud team and the offender spoke to a fraud analyst.

In this call the offender asked the fraud officer whether the $2.5 million had been received. The fraud officer said it had not, and further, that the documents provided to the bank were insufficient as they did not establish title to the funds. The offender said that he and his father would not submit any further documents, and that the money belonged to them. He went on to say “It’s a legal account. We are accepting some funds from Singapore… We had the legal documents for that for the money coming from Singapore to our accounts and we are going to buy share.”

The sum of $2.5 million was never released to the offender.

In late 2018 MT and his wife … became the subject of a police investigation which included interception of their telephone services physical surveillance and installation of electronic devices in MT’s work vehicle. They were arrested on 11 July 2019.

The offender was arrested on 19 July 2019. On that day he participated in an electronically recorded interview and denied any wrongdoing. He denied knowing El-Kotob. When asked about the large deposits he made with MT at various bank branches he said that MT had asked him to help with deposits because he (MT) did not have a drivers licence. He said while he initially believed that MT had a successful business, he became suspicious and ceased his friendship with him. He denied receiving any financial reward for assisting MT with cash deposits into various banks.

With regards to the attempted fraudulent transfer of $2.5 million into his father’s account, the offender stated that MT told him that this was his money. According to the offender, MT said that he had sold some shares in Singapore and that was where the money was coming from. The offender said MT had offered him to do some business together. The offender was asked why he did not tell MT to put the funds into his own account. The offender stated that MT did not have a Commonwealth Bank account. The offender said he was a victim of MT’s deception.

The pleas of guilty which have been entered by the offender expressly disavow the denials he made in his electronically recorded interview with police.”

Objective Seriousness

12. After summarising the agreed facts, the sentencing judge made the following findings with respect to the objective seriousness of both counts:

“GENERAL PRINCIPLES AND OBJECTIVE SERIOUSNESS OF THE MONEY LAUNDERING OFFENCE

As I observed at the commencement of this judgment, count 1 is contrary to section 193C (1) of the Crimes Act. That section is contained in Part 4AC of the Act entitled “Money Laundering”. That Part contains a hierarchy of money laundering offences, the most serious of which are within section 193B. Offences under that section require that an offender know or be reckless as to whether the property with which they are dealing is proceeds of crime. The offence for which the offender must be sentenced is a less serious offence than one under s 193B. In sentencing for an offence under section 193C I must bear in mind that the elements of the offence require that there be “reasonable grounds to suspect that the property is proceeds of crime”. As observed by Johnson J in R v MT [2022] NSWCCA 53 at [112]: “A person cannot be sentenced upon the basis that the person knew or was reckless as to whether the property was the proceeds of crime, with the circumstances giving rise to more serious offences under s 193B. The “reasonable grounds to suspect” element in s 193C (1) does not turn on the state of mind of the accused person.”

General deterrence is a matter of importance in sentencing for money laundering offences involving ongoing and large-scale activity. In R v Huang; R v Siu [2007] NSWCCA 259 at [36] which was a case involving the transfer of funds by the two offenders of slightly more than $3 million and slightly more than $550,000 respectively, the court observed:

“Money laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree.”

It is also important that I bear in mind that count 1 is a “rolled up” count in which nine individual money laundering transactions are included. That is, it includes nine separate and distinct episodes of criminal conduct, so increasing the objective seriousness and overall criminality, beyond what it would be if there were lesser episodes of such criminal behaviour.

As Johnson J observed in MT at [172], “A common feature of money laundering cases is that it will frequently be impossible to identify the origin of the funds” and “Perhaps the most important consideration in sentencing for money laundering offences will be what the offender actually did, with what authority and over what period of time”.

His Honour went on to observe at [173] with citations omitted that other important considerations in assessing the objective seriousness for offences of this type include:

a. the total amount involved in the offending and the measure by which that amount exceeds the threshold for the offence:

b. the number of transactions engaged in by the offender and the period over which the transactions occurred:

c. the seriousness of offending is elevated where the offences were committed for profit and motivated by greed:

d. the degree of planning or deceit involved in the commission of the offence and whether actual loss resulted:

e. general deterrence is a matter of importance in sentencing for money laundering offences involving ongoing and large-scale activity.

The objective seriousness of offending of this type will also be measured by reference to the fact an offender’s knowledge of the illegality of the conduct increases the seriousness of the offending, the fact that an offender is an intelligent professional who uses his legitimate business (as is the case here) as a cover for money laundering elevates the objective seriousness.

Here, the quantum involved in the offending being more than $1.2 million, exceeds by more than 12 times the threshold for an offence under section 193C (1). That fact points towards the offending being more objectively serious. As is often the case in offending of this type, the facts do not identify the source of the laundered funds, although there can be no doubt, as the offender concedes by his plea of guilty, that there were, during the period covered by the indictment, reasonable grounds to suspect that the subject funds were the proceeds of crime.

The offending involved nine separate occasions of criminal behaviour over a period of approximately six weeks and my earlier remarks concerning rolled up counts have relevance in this regard. The offending was not isolated, and the offender was aware of the joint criminal enterprise for several months before he became fully engaged in it. To the extent he asserts that he was not aware of any criminal activity until well after he had become involved, I do not accept what he says. To do so would involve me in departing from the facts agreed upon by the parties for the purpose of sentence. That is not a course upon which I can or should embark.

The offending is properly characterised as well-planned, sophisticated and bold. The level of planning was, in my view, greater than necessarily attaches to an offence of money laundering. It was plainly committed for profit and motivated by greed. No other inference is available to be drawn and Mr Coroneos properly conceded this. I accept the offender was not initially involved in the establishment of the joint criminal enterprise, however there is no doubt that once he became engaged in it, he was a most enthusiastic and eager participant. While he was certainly not at the apex of the group, those roles being fulfilled by El-Kotob and MT, nor was he at the bottom of the hierarchy where Thapa and Dahl sat. His role in collecting cash, counting it, depositing it at various banks including by the use of deposit slips in false names to disguise his involvement, using bank accounts he controlled to launder the funds, communicating with money remitters and directing the transmission of funds to China, along with the creation by him of fictitious invoices to assist in the transmission, demonstrates a significant level of willing engagement. In addition I have regard to his involvement in the establishment of the three companies and the various bank accounts used to launder funds when MCFE withdrew its services, and to the fact that he received a commission on the funds he transferred.

His role in the hierarchy of the money-laundering enterprise was at a level similar to or slightly higher than Singh. In reaching this conclusion I note that the amount of money with which Singh was involved was greater than this offender, and I accept that Singh was, as Judge McClintock found in sentencing him, generally directed by MT or El-Kotob. This offender on the other hand undertook more tasks within the ongoing operation of the joint criminal enterprise and exercised in a real way a good deal of independence and autonomy. In any event, all the steps taken by the offender were important and critical to the ongoing operation of the criminal group during the period that is the subject of count 1.

In my view the objective seriousness of the offending in count 1 falls at or about the middle of the range for offences of its type.

GENERAL PRINCIPLES AND OBJECTIVE SERIOUSNESS OF THE ATTEMPTED FRAUD OFFENCE

Turning then to the attempt fraud offence. The objective seriousness of a fraud offence or an attempt to commit such an offence, is guided by a consideration of the amount of money involved, whether any actual loss was occasioned, the length of time over which the offending occurred, the motive for the crime, the degree of planning and sophistication, and whether there is any accompanying breach of trust, which there is not here.

The amount of money involved in this offence is obviously very large, although by virtue of the diligence of staff of the Commonwealth Bank there was no actual financial loss occasioned. This is despite the best efforts of the offender in what was a concerted, persistent and deliberate attempt by him to obtain money to which he had no entitlement. The offending is characterised by a significant degree of planning and sophistication. That planning is, in my view, greater than necessarily attaches to an offence of its type and is accordingly an aggravating feature. In respect of this offence I am satisfied the offender had a more substantial role than MT. He was to receive a greater commission and it was he who suggested that the vehicle for the fraud should be a CBA account in his father’s name to which he was a signatory. During the three-week course of the crime, he proactively engaged in repeated dishonest and deceptive acts including posing as his father in conversations with officers of the Commonwealth Bank and creating and submitting fraudulent documents to them. While the offending occurred over a relatively short space of time it was a brazen, audacious, and persistent attempt to defraud a very significant sum of money. His motive was greed and he stood to benefit financially by the payment of a 4% commission, which amounts to $100,000.

In my view, the objective seriousness of the attempt to obtain a financial advantage by deception offence falls slightly above the mid-range of objective seriousness for offences of its type.”

(emphasis added to align with the Applicant’s written submissions)

13. I observe that the first underlined extract of his Honour’s remarks is said by the applicant to be referable only to the Form 1 offence and provides the clearest evidence that Form 1 conduct was taken into account in relation to the objective seriousness of count 1. The second underlined extract, when read with the first, is said by the applicant to demonstrate that his Honour had regard to the ongoing involvement with the joint criminal enterprise, rather than remaining focused on the nine specific transactions charged by count 1. In oral submissions, Mr Trevallion could not point to any other part of his Honour’s remarks that dealt with the objective seriousness of count 1 that was said to offend the principle against double counting.

14. His Honour then summarised the applicant’s subjective case before synthesising all relevant factors to be taken into account on sentence. He addressed the issue of parity with the applicant’s co-offenders. When articulating the indicative sentences for each count, his Honour expressly stated that the indicative sentence for count 2 took into account the matter on the Form 1. He said:-

“The indicative sentences I regard as appropriate are as follows:
Count 1 – a sentence of 2 years imprisonment less 5% to reflect the plea of guilty, making an indicative sentence after rounding down of 22 months imprisonment.
Count 2 – taking into account the matter on a Form 1, a sentence of 4 years 3 months imprisonment less 5% to reflect the plea of guilty, making an indicative sentence after rounding down of 4 years imprisonment.

I have finally concluded that an appropriate total aggregate term of imprisonment is one of 4 years and 6 months imprisonment.”

15. The only other mention of the Form 1 was in his Honour’s orders, when he said:-

“2. Taking into account the matter on the Form 1 and pursuant to section 53A of the Crimes (Sentencing Procedure) Act you are sentenced to an aggregate term of imprisonment consisting of a total term of 4 years and 6 months and a non-parole period of 2 years and 6 months commencing 23 October 2022.”

Submissions in the sentencing proceedings

16. The applicant placed much reliance on the written and oral submissions of the Crown Prosecutor during the sentencing hearing to advance his ground of appeal. In written submissions, the Crown Prosecutor contended that the acts constituting count 1 did not take place in isolation but took place in the context of the Form 1 offence, because of the applicant’s material role in the criminal group. The Crown Prosecutor submitted in writing that:

“…the offender’s offending in relation to count 1 (and the Form 1 offence) was serious, and above the middle of the range of objective seriousness…the offender was instrumental to the successful operation of the joint criminal enterprise.”

17. During oral submissions, the following exchange took place between his Honour and the Crown Prosecutor with respect to the relevance of the Form 1 offence, in response to a submission by the applicant that the periods of offending for both counts were limited:

CROWN PROSECUTOR:   …In relation to the limited period of time…one would need to keep in mind two considerations. One is that there is a Form 1 offence…That covers the period of the offender’s admitted participation in the joint criminal enterprise, and that’s a period of three months. So, whilst one can take the specific narrower dates averred in the indictment, one also keeps in mind, I submit, the facts, including the context in which the offending occurs, which often is outside of that specific date rate, but also, in relation to the fraud offence, the existence of the form 1, which covers a period of three months. That’s one aspect.

There is another aspect, and this is at p 7 of the agreed facts.

HIS HONOUR:      Is this going to this question of duration?

CROWN PROSECUTOR:   Yes. Perhaps it might be a footnote in your Honour’s consideration but, if your Honour were to look at p 7 of the agreed facts—

HIS HONOUR:      Let me just turn it up, Mr Crown.

CROWN PROSECUTOR:   At p 7, the second last paragraph. We’ve essentially sought, in this section, to summarise the role of each offender in the overall enterprise. That paragraph reminds the factfinder that the offender’s activities were not committed in isolation. It gets back to that point that I’m seeking to make, which is that, whilst there are specific dates, it’s not as though this conduct arose out of nothing and was in complete isolation from what’s occurring around it, which is the ongoing participation in the joint criminal enterprise.

HIS HONOUR:   The form 1 offence? That’s what that relates to, isn’t it?

CROWN PROSECUTOR:   Yes, exactly.

HIS HONOUR:   They were not isolated activities because of the participation in the 93T offence.

CROWN PROSECUTOR:   The Form 1 – indeed, yes.

HIS HONOUR:      Yes.

CROWN PROSECUTOR:   I accept that the Form 1 offence is only relevant to the imposition of an indicative sentence for count 2, but, even in that more limited sense, it reminds the finder of fact that there is a context that is wider.

18. The applicant’s written submissions at the sentence hearing referred to the well-known principles when dealing with Form 1 matters, but did not specifically deal with the application of the Form 1 offence as applied to the particular facts of this case. Neither did he refer to the Form 1 offence in oral argument.

Parties’ submissions

19. The applicant submitted that the sentencing judge was led into error because the Form 1 offence, which was factually intertwined with count 1, was attached to count 2 with which it had no factual connection. He submitted that this created a real risk that the Form 1 offending would be double counted by the conduct of the Form 1 being considered as part of the facts going to the objective seriousness of count 1 and that the offence would be formally taken into account when sentencing for count 2. The applicant submitted that this risk materialised and that the sentencing judge erred by double counting the Form 1 offending.

20. Mr Trevallion, who appeared on behalf of the applicant, submitted that the Form 1 offence arose from the applicant’s participation in the same money laundering joint criminal enterprise as charged by count 1. Whilst the Form 1 offence related to his participation generally in the joint criminal enterprise, count 1 related to a series of nine specific transactions totalling $1,211,897, undertaken as part of the joint criminal enterprise. The period particularised on the Form 1 overlapped with, but was broader than, the period to which count 1 referred.

21. In making this submission, Mr Trevallion relied upon the sentencing judge’s assessment of the objective seriousness of count 1 in the remarks on sentence. He submitted that his Honour had regard to the applicant’s ongoing involvement in the joint criminal enterprise rather than the nine specific transactions charged by count 1.

22. The applicant submitted that the Crown Prosecutor’s written submissions on sentence invited the sentencing judge to double count the Form 1 offence by having regard to it when assessing the objective seriousness of both counts. Mr Trevallion contended that whilst the Form 1 offence arose out of the same criminal group conduct as charged by count 1, the period particularised on the Form 1 was 1 October – 31 December 2018. This overlapped with, but was longer than, the period to which count 1 related (1 November – 14 December 2018). In oral argument, Mr Trevallion submitted that the establishment of the registration of new companies – part of the Form 1 offending – predated the count 1 offending, and was taken into account in determining the objective seriousness of count 1. He conceded, appropriately, that the applicant had to set up the companies as a preliminary step to the money laundering.

23. With respect to the relevant legal principles, it was submitted by the applicant that whilst there appears to be no authority that is completely apposite to the ground of appeal before this Court, it may be inferred or deduced from the cases that whilst it is permissible to take into account the circumstances underpinning a Form 1 offence in reflecting on an offence to which it does not attach, care must be taken to ensure that if this is done, there is no double counting by applying the Form 1 offence in sentencing for the offence to which it does attach. It was submitted that because his Honour undertook no discrete consideration of the Form 1 offending, separate to the consideration of count 1, this demonstrates that his Honour conflated the Form 1 and count 1 facts and double counted the Form 1 by taking it into account when assessing the objective seriousness of count 1 (and therefore the indicative sentence), and by expressly taking it into account when specifying the indicative sentence for count 2.

24. The Crown submitted that the sentencing judge was entitled to consider the ongoing participation of the applicant over the charge period in the Form 1 whilst the count 1 offending took place, as it provided context to that offending (as it did to the count 2 offending). She submitted that so much was clear from the Crown Prosecutor’s written submissions which referred to the Form 1 offending as context. Further, in the Crown’s submission there was nothing in the remarks on sentence which suggested that the sentencing judge had erroneously “attached” the Form 1 offence to count 1. Rather, his Honour was entitled to and did refer to the broader context of the Form 1 offending when assessing the objective seriousness of count 1. In the Crown’s submission, had his Honour assessed the objective seriousness of the nine acts constituting count 1 in isolation, this would have been erroneous. The context provided that the applicant was aware of the criminal enterprise for some time prior to joining the group, that he had gone into the group with eyes wide open, that he was an enthusiastic participant and that the offending was not isolated. It was submitted that his Honour used the Form 1 offending to demonstrate that the offending did not occur in a vacuum and did not constitute momentary lapses of judgment.

25. The Crown also submitted that contrary to the applicant’s submission, the Form 1 offence related to the criminality of count 2. This was because in both counts, some members of the same criminal group were involved and the acts constituting both counts were carried out within the timeframe particularised on the Form 1. Therefore, the commission of both counts occurred in the context of the applicant’s participation in the criminal group, so that the Form 1 offending was relevant in this respect to his Honour’s assessment of the objective seriousness of both counts.

26. The Crown submitted that in any event the sentencing judge took a careful approach to ensure that he did not double count the Form 1 offending so as to impermissibly increase the indicative sentence for count 1. This, in the Crown submission, is reflected in his Honour’s remarks on sentence, by the indicative sentence of 22 months (after a 5% discount for the applicant’s plea of guilty) for count 1, and when regard is had to the sentences imposed on the applicant’s co-offenders (notwithstanding that parity is not in issue).

27. It was also submitted by the Crown that it is often erroneous for an applicant to rely on the submissions of counsel and any statements made by a sentencing judge during oral submissions in sentencing proceedings. However, the Crown submitted that it is clear from the transcript and the Crown Prosecutor’s written submissions on sentence that his Honour was attempting to extract the context within which all the offending occurred. The Crown submitted that this was clearly accepted by the sentencing judge and was reflected in his remarks on sentence.

28. In oral argument before this Court, the Crown said that the steps taken by the applicant in setting up the fake companies (the subject of the Form 1) was set out by his Honour because that facilitated the money laundering the subject of count 1. She observed that the applicant could not point to a single place in the sentencing judge’s remarks where his Honour took the Form 1 into account with respect to count 1 because it did not occur. She submitted that his Honour clearly stated from the outset that count 2 was the count to which the Form 1 attached, the relevance of the Form 1 matter and the manner in which he would take it into account, which was realised in the sentencing judgment.

Applicable principles

29. In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, Beech-Jones CJ at CL (as his Honour then was), with whom Garling and Yehia JJ agreed, summarised the authorities with respect to the significance of Form 1 offences to a sentencing exercise at [23]–[25]:

“[23] First, the Form 1 offences can be taken into account on sentencing as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment (Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); “Abbas” and Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; “Attorney General’s Application”). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General’s Application at [18]).

[24] However, the inclusion of an offence on a Form 1 does not of itself increase the assessment of the objective seriousness of the substantive offence (Singh v R [2021] NSWCCA 96), although the facts and circumstances of the Form 1 offence (or uncharged acts) may be relevant to the assessment (see Ragg v R [2022] NSWCCA 150 at [38]−[47]; “Ragg”). For example, such circumstances might place the substantive offence in context (LN v R [2020] NSWCCA 131 at [54] per Basten JA; “LN”) or, if they involve the infliction of harm on the victim immediately prior to the substantive offence, they might demonstrate the victim’s vulnerability when the substantive offence was committed (LN at [159]; Ragg at [44]).

[25] Second, uncharged acts that amount to an offence cannot be taken into account in the manner identified by Abbas and Attorney General’s Application for Form 1 offences, ie, they are not matters that warrant additional need for personal deterrence and retribution. However, the facts and circumstances of that conduct can otherwise be considered in the same way that the facts and circumstances of Form 1 offences can be considered…”

[emphasis added]

30. The principles of the cases to which his Honour referred at [23] were summarised by Bellew and Wilson JJ in RL v R [2018] NSWCCA 274 at [54]–[55]:

“[54] In Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 the provisions of s 33, along with those of s 32, were considered by this Court. The following propositions can be extracted from the judgment of Spigelman CJ:

(i) although a court is sentencing for a particular offence, the use of the Form 1 means that the sentencing court takes into account an additional matter or matters in respect of which guilt has been admitted: at [42];

(ii) the sentencing court takes such additional matter(s) into account with a view to increasing the penalty that would otherwise be appropriate for the offence for which the person is to be sentenced: at [42];

(iii) the sentencing court takes such additional matter(s) into account by giving greater weight to two elements which are always material in the sentencing process, namely personal deterrence, and the entitlement of the community to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed: at [42];

(iv) the manner and degree to which the Form 1 offence(s) can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors, and the weight to be given to them in the overall sentencing task: at [44].

[55] Two further propositions regarding the use of a Form 1 in sentence proceedings can be extracted from the recent judgment of Bathurst CJ in Abbas, Bodiotis Taleb and Amoun v R [2013] NSWCCA 115:

(i) ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) empower a sentencing court, in sentencing for the principal offence, to take further offence(s) into account, which could lead to an increase in penalty (up to the maximum penalty) for the principal offence: at [22];

(ii) such an approach would generally, although not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the further offence(s) were not taken into account: at [23].”

31. In Ragg v R [2022] NSWCCA 150, referring to Singh v R [2021] NSWCCA 96 and RO v R [2019] NSWCCA 183, Beech-Jones CJ at CL, with whom N Adams and Lonergan JJ agreed, said at [33]–[39]:-

“[33] The applicant’s submissions contended that paragraph 23 of the sentencing judgment reveals that his Honour regarded each of sequences 2, 17, 18 and 19 as affecting the assessment of the objective seriousness of each other offence. In both the applicant’s written and oral submissions, reliance was placed on RO v R [2019] NSWCCA 183 (“RO”) and Singh v R [2021] NSWCCA 96 (“Singh”) as precluding the use of one offence in assessing the objective seriousness of the other. It was contended that “[t]o use … offence X to aggravate the seriousness of offence Y is wrong in principle”.

[34] The reliance on RO and Singh was misplaced. In RO at [54], the sentencing judge assessed the objective seriousness of an offence by reference to, inter alia, an offence included on a notice filed by a prosecutor pursuant to s 32(2) of the CSP [the Crimes (Sentencing Procedure) Act 1999 (NSW)] (i.e., a “Form 1”) which concerned other criminal conduct committed on a different occasion. This was found to be erroneous in two respects.

[35] First, it was “erroneous because the assessment of the objective seriousness of a criminal offence that carries a standard non‑parole period ‘is to be determined wholly by reference to the nature of the offending’ for that offence and not other criminal conduct engaged in on a different occasion” (at [56], citing Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]; “Muldrock”).

[36] Second, it was found to be erroneous “because it [was] inconsistent with the [CSP] for Form 1 offences to be considered in this manner” in that they only demonstrated an “additional need for personal deterrence and retribution” (at [57]; citing Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA), at [104] (Hoeben CJ at CL), and at [154] (Garling J); and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]).

[37] In Singh, the sentencing judge also assessed the objective seriousness of an offence by reference to an offence included on a Form 1 that occurred at or around the same time as the substantive offence (at [43]). It was contended and conceded that the second of these errors was established (at [59]).

[38] Hence, RO is authority for the proposition that it is erroneous to use an offence committed on another and completely different occasion as part of the assessment of the objective seriousness of the subject offence. Both RO and Singh are authority for the proposition that it is erroneous to use a Form 1 offence per se in assessing the objective seriousness of the substantive offence. This case does not concern a Form 1 offence. However, neither RO or Singh are authority for a blanket proposition that the facts and circumstances of a related offence can never be relevant to the assessment of the objective seriousness of the subject offence. There is no such proposition. The real issue is not so much whether the facts and circumstances of a related offence might be capable of affecting the assessment of the objective seriousness of the subject offence, but how they can affect that assessment.

[39] Such facts and circumstances are sometimes considered as part of the context of the offending. Hence, in LN v R [2020] NSWCCA 131 (“LN”) at [54] Basten JA observed:

“So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender’s interests must be established beyond reasonable doubt.”

32. In Andrew Smith v R [2013] NSWCCA 209 (“Andrew Smith”), in dealing with a ground of appeal that contended that the judge erroneously engaged in double counting by taking into account matters included on two Form 1s concerning damage to property and contravening an apprehended violence order when determining the objective seriousness of an offence of intimidation, RA Hulme J, with whom Leeming JA and Button J agreed, said at [40]–[41]:-

“[40] The second feature was that the judge took into account an offence on the Form 1 of contravening an apprehended domestic violence order. Again, I do not regard that as involving double counting. Contravening an apprehended domestic violence order does not necessarily involve the commission of an offence in the nature of domestic violence. There are other, non-violent, ways in which such an order can be contravened. In any event, I know of no prohibition upon taking into account the circumstances underpinning an offence taken into account on a Form 1 when assessing the objective seriousness of the primary offence. (No authority was cited.) Obviously when that is done, care is needed in evaluating the extent to which the sentence for the primary offence might be increased by virtue of there being another offence taken into account.

[41] It should be borne in mind that it was at the applicant's request that the judge took into account the contravention of the ADVO when sentencing for the principal offence. No complaint is raised about the manner in which his Honour did so; nor is it contended that the influence it had upon the assessment of sentence for the principal offence was in any way erroneous.”

Consideration

33. The argument advanced by the applicant is essentially that the sentencing judge double counted the Form 1 offence by taking it into account when assessing the objective seriousness of count 1. There is no real dispute that his Honour properly took the Form 1 offence into account when expressing the indicative sentence for count 2.

34. The applicant’s argument can be dealt with in short order.

35. When dealing with the objective seriousness of count 1, his Honour mentioned the Form 1 offending in two sentences. In doing so, his Honour was taking into it into account as context for the count 1 offending. The first underlined sentence dealt with context in a very general way. The second sentence dealt with the offender’s role within the context of the entirety of the offending. The sentence commencing “In addition I have regard to his involvement in the establishment of the three companies and the various bank accounts used to launder funds when MCFE withdrew its services” is clearly meant to indicate that the offender’s involvement in the money laundering was not isolated. The same can be said for the sentence “The offender on the other hand undertook more tasks within the ongoing operation of the joint criminal enterprise and exercised in a real way a good deal of independence and autonomy”, which also put his role compared to his co-offenders in context.

36. Much of the applicant’s argument centred on the Crown Prosecutor’s written submissions on sentence and the exchanges between the bench and bar table at hearing. To the extent that there is any complaint by the applicant in support of the ground of appeal that relies upon the reading of the transcript of the sentence hearing and his Honour’s responses to propositions put in oral argument, I would reject it. As Adamson J said in Dang v R [2014] NSWCCA 47 at [32] (Simpson J, as her Honour then was, and Davies J agreeing):-

“It is an important part of procedural fairness that a judge will, at times, express views in the course of oral argument. However, judgment is necessarily suspended until all evidence has been adduced and all submissions made. Only then can all matters be considered, a decision made and reasons for decision given in the remarks on sentence. The remarks comprise the reasons. The reasons are not to be discerned from the exchanges in the course of the hearing, since the latter may constitute no more than the articulating of a position propounded for the purposes of argument, and at best, the expression of a preliminary view.”

37. See also Ahmad v R [2022] NSWCCA 144 per Mitchelmore JA at [20] (Meagher JA and Bellew J agreeing) and Lonsdale v R [2020] NSWCCA 267 per Hoeben CJ at CL at [27] (Beech-Jones and N Adams JJ agreeing at [61]).

38. Further, in this case, the applicant does not complain about his Honour’s characterisation of the objective seriousness of the count 1 or 2 offending. As is well understood, it is not the function of this Court to substitute its own view as to objective seriousness for that of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ and at [46] per Simpson J.

39. Notwithstanding the authorities, I will deal briefly with the applicant’s submissions on this point. The submissions of the Crown Prosecutor at sentence that the Form 1 offence drew out the context of both counts was clearly accepted by the sentencing judge and is reflected in his Honour’s remarks on sentence. It was open to his Honour to have regard to the facts of the Form 1 offence when assessing the objective seriousness of count 1 because those facts provided important context to that offending, and to the offending constituting count 2. The Form 1 offending was the yoke which united the charged offending. To have ignored it would have made his Honour’s remarks artificial and disjointed. What his Honour could not do was take into account the Form 1 offending when assessing the objective seriousness of count 1 by increasing the gravity of that offending.

40. In my opinion, on any fair reading of his Honour’s remarks, he did not take into account the Form 1 offending to elevate the objective seriousness of count 1. I observe that Mr Trevallion could not point to one material instance in the sentencing judge’s remarks on sentence that demonstrated that he had in fact double counted the Form 1 offence.

41. Further, the applicant conceded that the authorities demonstrate that it is permissible for the circumstances of a Form 1 offence to be considered with respect to a charged offence to which it does not attach by way of context, but that care should be taken by a sentencing judge not to double count by increasing the objective gravity of the offence to which it does not attach. In my view, this is what his Honour did. There was no demonstrable error on the part of the sentencing judge. Rather, his Honour carefully assessed the objective seriousness of both charged offences, noting the context of the Form 1 offending. He attached the Form 1 to count 2, as he was obliged to do in accordance with s 33 of the Sentencing Act.

42. Finally, to the extent that the applicant sought to impugn the Crown’s decision to attach the Form 1 offence to count 2, I observe that the applicant endorsed this approach, given his agreement to plead guilty to counts 1 and 2 and to admit guilt to the further offence on the Form 1 which he asked the sentencing judge to take into account when dealing with him for the principal offence of count 2: see Andrew Smith at [41].

Orders

43. I propose the following orders:-

1. Grant leave to appeal.

2. Dismiss the appeal.

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Decision last updated: 05 April 2024