R v Kurtulmus - [2020] NSWDC 149

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kurtulmus [2020] NSWDC 149
Hearing dates: 28 June 2019, 08 October 2019 & 18 March 2020
Date of orders: 26 March 2020
Decision date: 26 March 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Sentence of imprisonment of 3 years 4 months and 15 days with a non-parole period of 1 year 4 months

Catchwords: CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
SENTENCING — Relevant factors on sentence — Circumstances of offence
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Relevant factors on sentence — General principles
SENTENCING — Relevant factors on sentence — Maximum penalty
SENTENCING — Sentencing procedure — Expert reports
SENTENCING — Sentencing procedure — Reasons for sentence
SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995
Cases Cited: Atilgan v R [2018] NSWCCA 5
Attorney General’s application under s 37 Crimes (Sentencing Procedures) Act 1999 No 1 of 2002 [2002] NSWCCA 518
Luong v The Queen [2014] NSWCCA 129
Mill v R (1988) 166 CLR 59
Qutami [2001] NSWCCA 353
R v Borkowski (2009) NSWCCA 102
R v Todd [1982] 2 NSWLR 517
R v Tuki No 4 [2013] NSWSC 1864
The Queen v Kay (2004) NSWCCA 130
The Queen v Ly (2014) NSWCCA 78
The Queen v Olbrich (1999) 199 CLR 270
Category: Sentence
Parties: Regina (Crown)
Erhan Kurtulmus (Offender)
Representation:
James Ly (Crown)
Avni Djemal (counsel) (Offender)
Director of Public Prosecutions (NSW) (Crown)
Zahr Partners (Offender)

File Number(s): 2017/00305393

EX TEMPORE REVISED JudgEment

This is the sentence to be imposed on Erhan Kurtulmus.

INTRODUCTION

Erhan Kurtulmus appears for sentence upon one charge of dealing with the proceeds of crime, reckless as to whether it is the proceeds of crime contrary to s 193B(3) Crimes Act 1900.
The offence occurred between 3 April 2014 and 15 April 2014. The maximum penalty for this offence is imprisonment for ten years. There is no standard non-parole period for the purpose of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

THE TIMING OF THE PLEA OF GUILTY

The offender pleaded guilty to this offence in the Local Court from whence he was committed for sentence to the District Court where before me he adhered to his plea of guilty.
In accordance with the judgement of Howie J in R v Borkowski (2009) NSWCCA 102 he is therefore entitled to a discount for the utility of his plea of guilty to be applied to the sentence determined upon the synthesis of objective and subjective factors arising from the circumstances of the offending and the offender, including any contrition and remorse.
The Crown submits that the discount should be confined to 20% in light of the course taken in these proceedings where at one point the offender required for cross-examination, upon a disputed fact, an undercover operative, a course that he later abandoned, and because he also required for cross-examination the officer-in-charge of the operation to explore questions of delay between the prosecution on an earlier occasion for an offence that was part and parcel of the series of transactions that led to this prosecution.
Having given careful consideration to the Crown’s submission I have come to the view that in light of the significance of the period of delay between the earlier prosecution and the commencement of proceedings for the present offence the offender ought to be given the benefit of a discount of 25% in accordance with Borkowski (ibid) for he was entitled, in my judgement, to explore the reasons why the prosecution was not initiated before it was. This is not to say, however, that delay such as it was would ameliorate to any great extent the punishment to which he is exposed, but even so he was entitled to establish, to the extent possible, the reasons for delay that might contribute to the determination of the matter at this stage in its history.

OFFENCE TO BE TAKEN INTO ACCOUNT

The offender asks that when I determine sentence for the offence of recklessly dealing with the proceeds of crime that I bring to account an offence the particulars of which are set forth in a Form 1. This is an offence of participating in a criminal group contrary to s 93T(1) Crimes Act for which the maximum penalty is five years.
The offender confirmed his wish that this matter be brought to account and admitted his guilt in respect of it. He must be sentenced to a term of imprisonment that will provide appropriate punishment for the offence to which he pleaded guilty, subject to the consideration that must be given on the Form 1 to be taken into account.
I note that having availed himself of this arrangement the offender has the benefit of not facing separate punishment for the additional offence. I have reviewed the principles enunciated in Attorney General’s application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.
The additional offence should impinge upon the sentence for the principal offence requiring an appropriate increase in the sentence that would otherwise be applied to the principal offence standing alone thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender’s misconduct and the community’s entitlement to retribution for all of his misconduct, including that involved in the additional offence: (ibid) at para [42].
The submission made on his behalf is that the conduct upon which that charge was prosecuted was in large measure if not entirely the same conduct underpinning the principal offence, and thus the extent to which the additional offence would impinge on it would be no more than slight.
The extent to which the additional offence will impinge upon the principal offence is informed by the nature of it and the conduct upon which the Crown would rely in proof of it, or which is admitted by the offender. The offender has not given evidence and thus it is necessary to consider out of court statements attributed to him regarding the relevant conduct, if there are any, and facts which are either available from the direct evidence before me, or available as inferences from that direct evidence.
At the time of the offence the provision creating the offence was in the following terms:

“1. A person who participates in a criminal group is guilty of an offence if the person -
(a) Knows, or ought reasonably to know, that it is a criminal group, and
(b) Knows, or ought reasonably to know, that his or her participation in the group contributes to the occurrence of any criminal activity.”

By acknowledging his guilt the offender has acknowledged the essential elements of the offence which would otherwise require proof that:

(a) He knew that the group was a criminal group and that his participation contributed to the occurrence of any criminal activity; or
(b) He ought reasonably to have known that the group was a criminal group and that his participation contributed to the occurrence of any criminal activity.’’

Upon the structure of the provision the offence would be completed upon proof of one or other of the following:

(a) Actual knowledge that the group was a criminal group, and actual knowledge that his participation contributed to the occurrence of any criminal activity.
(b) Actual knowledge that the group was a criminal group and imputed knowledge that his participation contributed to the occurrence of any criminal activity.
(c) Imputed knowledge that the group was a criminal group and actual knowledge that his participation contributed to the occurrence of any criminal activity.
(d) Imputed knowledge that the group was a criminal group, and imputed knowledge that his participation contributed to the occurrence of any criminal activity.”

I have used the phrase “imputed knowledge” to reflect the concept for which the legislation provides, that is, facts that he ought reasonably to have known.
The term “criminal group” is defined under s 93S of the Act. “Criminal Group” means a group of three or more people who have as one of their objectives:

(a) Obtaining material benefits from conduct that constitutes a serious criminal offence, or
(b) Obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence, or
(c) Committing a serious violence offence, or
(d) Engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence.”

There is no evidence upon which I can conclude that paras (c) and (d) apply. The question that arises therefore is the nature of the serious indictable offence in question. This term is defined in s 4 of the Act.
“Serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of five years or more. The definition contemplates a broad range and in the absence of evidence upon which to decide which offence, or offences, might have been the objective of the criminal group in which the offender participated, I turn to the offender’s acknowledgement of guilt in respect of the additional offence that would permit no more than to proceed upon the basis of an indictable offence undetermined which carried as the maximum penalty imprisonment for five years.
Section 93T(6) Crimes Act provides:

“To avoid doubt, for the purposes of this section, a person may participate in a criminal group whether or not the person is a member of the criminal group.”

The provision creating the principal offence found at s 193B Crimes Act is expressed thus:

“A person who deals with the proceeds of crime being reckless as to whether it is the proceeds of crime is guilty of an offence.
Maximum penalty: Imprisonment for ten years.”

This is the least serious in the range beginning with dealing with the proceeds of crime knowing it is the proceeds of crime, intending to conceal that it is such, contrary to s 193B(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years, after which there is the less serious offence of dealing with the proceeds of crime knowing that it is the proceeds of crime, contrary to s 193B(2) Crimes Act, for which the maximum penalty is imprisonment for 15 years.
I summarise the statement of agreed facts later in this judgement. There is no specification in that document of any particular conduct of the offender upon which the additional offence has been charged except perhaps in the final para 165 which includes the following:

“At the time the offender was arrested on 17 April 2014 the offender was known to investigators, he had been subject to a controlled operation and had contact with an undercover operative. The overall investigation was wider than the current proceeds of crime offence and ongoing.”

The reference to the controlled operation would appear to be to the transaction in which UCO1900 acted. This was a single transaction. It is apparent however that the enterprise in which the offender participated extended beyond him including the deployment of others engaged upon comparable roles. The description of the conduct of MS01, MS06, MS08, MS04, MS05 and MS02 extends to transactions in which they perform their roles adopting the arrangements upon which they had been instructed, in addition to the transactions in which the offender is nominated.
The full extent of the enterprise is not defined more precisely but in general terms deals with each of the code named individuals. However, there is sufficient in the agreed statement of facts to conclude that the offender knew that the group in which he was participating was a criminal group and that his participation contributed to the occurrence of criminal activity whatever forms it might have taken.
The acknowledgement of guilt for this offence includes the acknowledgement that this was a criminal group engaged in activities which included criminal activity of some description. It is not possible to determine on the material before me what that criminal activity was overall, or in any given instance of the offender’s conduct, but it beggars belief to hold that he had not been shown to have had actual knowledge of the group as a criminal group and that his participation contributed to the occurrence of criminal activity of whatever nature it might have been.
Upon this analysis I am not persuaded that I should resolve the question of the significance of the additional offence upon the basis that the conduct underpinning the principal offence subsumed entirely the conduct underpinning the additional offence. I am satisfied that the additional offence extends beyond the scope of conduct in the principal offence by reason of the more extensive misconduct of the coded identities in the pursuit of the goals of the criminal group in which all were participants, including the offender, albeit to a more limited extent, but who, by reason of his participation, contributed to the occurrence of criminal activity whatever its nature upon which the criminal group pursued its goals.
Contribution to the occurrence of any criminal activity carries with it the connotation of conduct as a participant which is but part of the overall conduct in pursuit of the goals in the enterprise by all participants whether members of a criminal group or merely ad hoc members engaging in some finite activity.
In R v Tuki No 4 [2013] NSWSC 1864 Johnson J determined a sentence to be imposed on an offender charged with a number of offences including one contrary to s 93T(1) Crimes Act. There had been a home invasion carried out by others who, with the offender, were members of a criminal group involved in the supply of methylamphetamine.
After the home invasion, in which the offender did not participate, a victim attended hospital with injuries suffered in the crime. Coincidentally the offender was there with his partner who was attending for attention. He was aware of the intentions of the group beforehand and when he saw the victim at the hospital he connected this with the home invasion which he knew was to be carried out that night. Over a period of time he telephoned the leader of the group to alert him to what was occurring at the hospital.
The offender engaged in other conduct described in the judgement in the course of activities with the group. These are set out at para 93 of his Honour’s judgement.
At para 151 his Honour wrote:

“Within the grade of hierarchy of offences in a s 93T Crimes Act1900 the offender has pleaded guilty to, and is to be sentenced for, the basic offence under s 93T(1) involving participation. However, he was a persistent participant who maintained his involvement with the criminal group after 2 July 2010, despite his actual knowledge of the violence perpetrated upon victims in home invasions. The offences now contained in s 93T were introduced in recognition of the fact that crimes committed by gangs, whether they be crimes of violence, armed robberies, or drug supply offences, are ‘a far greater threat to the safety and well-being of the community than most crimes committed by individuals acting alone’.” (Second reading speech, Crimes Legislation Amendment (Gangs) Bill 2006, Hansard, Legislative Assembly, 30 August 2006). “The circumstances of this case represent a vivid example of the mischief which s 93T was intended to address.”

I do not accept the submission that the additional offence should not impinge on the sentence for the principal offence, or that if it does so it is of modest importance in the assessment of sentence because of the correspondence between it and the principal offence. I do not overlook that the conduct was entirely of the offender’s participation in the criminal group, but it is the fact that he was a participant within the terms of the section that attracts the sanction which Parliament has provided, reflecting the need for punishment to deter the greater threat posed by criminal gangs acting in concert with each other. There will be an increase in the sentence that would have been imposed upon the principal sentence were it standing alone in accordance with the guideline judgement to which I earlier referred and bringing into account these considerations.

PRE-SENTENCE CUSTODY

The offender has spent one day in custody for these matters thus the sentence I intend to impose today will commence on 25 March 2020.

THE FACTS

The offender dealt with $1,912,070 in eleven separate transactions beginning on 1 April 2017 ($200,000) and thereafter on 7 April ($250,000), 8 April ($200,000), 9 April ($149,950 and $200,000), 10 April (200,000 and $80,000), 14 April ($200,000 and $250,000), and 15 April ($80,000 and $102,000).
The offender gave these sums to nine separate cash collectors and an undercover officer. The cash collectors are referred to by codes attributed to them in the course of the investigation, each with a unique number against the letters MS. The offender’s prosecution was not commenced until the gathering of statements from them.
The offender was not the initial target in the investigation into the money laundering activities of numerous individuals. The investigation was by multiple agencies, State and Federal. The offender’s participation was detected in the course of surveillance and telephone interception.

MS01

MS01 moved to Australia in 2007 and in due course gained citizenship. From about 2009 he began sending money to his mother in India using a Western Union agent there known to him, and referred to hereinafter as John. In 2012 he began to send her extra money. He requested that she be sent $1,000 but provided only $500 with the balance to accrue as a debt owed to him by John. His debt accrued to an amount he could not pay.
John gave him the opportunity to discharge the debt another way. He represented that he was in the money remittance business with contacts in Australia. MS01 participated in the following arrangement. John would contact him and advise that he would receive a telephone call to collect a parcel for delivery from one of John’s couriers, or one of his contacts. This parcel was a reference to cash.
MS01 diarised the cash collections and deposits from when they occurred in 2013 until June 2014. Arrangements for the delivery were that John would telephone MS01 with instructions to collect the money from John’s client and to await a phone call. He would on occasions tell him the amount. Thereafter the client, after John gave a phone number for MS01, would call advising that they had a parcel for delivery, or for him to collect. A time and location was appointed. A token system was used for verification.
John instructed MS01 to take a $5 note and transmit the serial number from it, or send a photograph of the note to John, who would in turn provide the serial number to the courier. At the appointed meeting MS01 took the cash and provided the $5 note in return.
On all but one occasion this procedure was followed. On the occasion when there was no exchange; MS01 did not have a $5 note. MS01 did not know any of the couriers.
After each successful exchange John would send MS01 details of bank accounts and directions for the deposit of the funds, including how much was to be deposited in each. After counting the money at home, sometimes with the assistance of his wife, MS01 recorded in his diary the date and the amount. He then bundled the money in the amounts nominated in John’s instructions and deposited into the accounts specified, after which he photographed the deposit slip in each case and sent the images to John using the WhatsApp application. The deposit slip was then discarded.

John’s instruction included that no deposit should be more than $10,000 and thus some of the funds had to be distributed between 10 and 20 deposits depending upon the amount received from the courier. He was also instructed on occasions to meet individuals to whom he was to pay money directly. These amounts ranged from $3,000 to $120,000.
In June 2014 a search warrant executed at the home of MS01 led to seizure of mobile phones, cash bags, diaries and bank documents.

April 3, 2014 - $200,000

MS01 recorded in his diary 200,000 3/4L parcel. This was intended to represent the amount and the date the parcel was received.
Telephone interception on 3 April 2014 between MS01 and the offender’s phone 0402 34X XXX captured the following set forth in para 24 of the statement of agreed facts.

“OFFENDER: Hi Mate, where exactly in Sutherland do u want me to meet u?
MS01: We have to be in Hurstville now at Woniora Road near train station.
OFFENDER: OK I can b there in 45 minutes if that suits u?
MS01. No, actually around 9 will b good but will see u at Southgate Shopping Centre, Sylvania.
OFFENDER: OK I can b there at 9.
MS01: Thanks.
OFFENDER: OK.
OFFENDER: Hi Mate, I’m here, just parked behind McDonald’s.
MS01: OK.
OFFENDER: How long till u get here?
MS01: In 10 min.
OFFENDER: OK thanks.”

The offender and MS01 were not known to each other before this.
About 9.20pm MS01 telephoned the offender whilst waiting for him and they discussed where they should meet. Thereafter MS01 approached the offender sitting in his vehicle and the exchange took place using the $5 token system. MS01 later on counted the money and recorded the particulars in his diary after taking possession of it following the instructions given by John. MS01 confirmed the details of the transaction against his diary entry to the investigators.

April 8, 2014 - $200,000

The following entry in the diary of MS01 recorded 200,000 8/4L parcel. Once more this is a record of the amount and the date the parcel was received.
MS01 and the offender exchanged the following text messages once more using the service 0402 34X XXX. These exchanges are at para 31 of the statement of agreed facts.

“OFFENDER: Hi Mate, I’ve got token for u. What time where would u like to meet?
MS01: About 11.30 at San Soucie”
“OFFENDER: OK no worries.
MS01: Change of place will be at West Street, Carlton off Princes Hway.
OFFENDER: Same time?
MS01: Yeah.
OFFENDER: OK.
OFFENDER: Hi Mate, just got here. I’m at the end.
MS01: OK I’m here too.
OFFENDER: I’m out the front of martial arts place.”

In this exchange the offender was attributed with the representation that he had the token which differs from the instructions given to MS01 as discussed earlier.
There was a further exchange of text messages at 11.37am set forth in para 32 of the agreed statement of facts.

“OFFENDER: Hello.
MS01: Hello.
OFFENDER: Hey buddy, how r u?
MS01: Good man. What number r u on? The martial arts name, AH...
OFFENDER: AH, AH, it’s right at the end - you know where the street bows around?
MS01 Oh yeah, the two streets come across?
OFFENDER: Yeah, yeah.
MS01: OK, I’m at the same car - the same ute?”

They met but in the brief interaction did not introduce themselves. Their meeting was as Sans Souci. There was a discrepancy with regard to the token which MS01 had but nevertheless he received the money. John told MS01 that he would speak to “his guy” in India about the token number being different. This implies that John had an associate concerned with the receipt and transmission of the serial numbers on the $5 note which amplifies with some imprecision the instructions given to MS01 previously discussed.

MS06

MS06 moved to Australia in February 1991. In 2010 his brother told him of friends who wanted to send money to Australia from Pakistan and from Pakistan to Australia. He told him they could earn commission by assisting the transfer of money to Pakistan. He told him that he would be required to hold onto the money and then distributed it according to instructions.
MS06 initially refused but when his mother subsequently asked him to assist his brother to facilitate transfers he agreed. He would collect money from people in Australia, follow his brother’s instructions upon the deposit of funds into business or personal accounts, or he would meet people and provide the money in person.
When he commenced this it was for people he knew in the Pakistani community. His instructions included that deposits could not exceed $10,000 because if they did the transaction would be reported, and if there was a sum greater than that to be dealt with it should be broken down into smaller amounts.
The amounts he dealt with increased to between $4,000 and $5,000 by 2012, and to between $10,000 and $15,000 by 2013, to be sent overseas. In 2013 he was approached by different Pakistani people for the transfer of unspecified large sums in consideration of a 1% commission to be shared with his brother. He agreed in due course.
In early 2014 he began collecting money. Instructions were received by telephone calls or text messages from people in Pakistan informing that he would receive a telephone call to be told that he would receive a parcel, a reference to cash, whereupon he would then receive a call from someone in Australia. The parcels received were always in a bag or cardboard box and on one or two occasions the money was vacuum sealed in plastic.
He would use the serial numbers of $5 notes to verify his identity. This he provided to his brother who sent it onto the person arranging for the transaction, who would then pass it onto the person who was delivering the cash in Australia. Without the token serial number MS06 would not receive the parcel. His brother told him that the token would then be forwarded to the next person above them and would eventually be forwarded back to the organiser.
I do not quite understand that representation but it would appear to me possible that the statement of facts has erroneously referred to the movement of the token when it was intended to refer to the movement of the money.
After the arrangement with the token serial number MS06 awaited contact from an unknown person he was to meet. The numbers of the callers were withheld sometimes and at other times the number was displayed on his phone. The calls were short and confined to arrangements for the intended meeting.
At the location selected the courier would ask for the serial number and MS06 would provide the $5 note in return for which the courier would deliver the parcel of money. The courier kept the $5 note.
Sometimes the amount delivered was disclosed and on other occasions it was not. The transactions were often brief, taking only the amount of time required for the exchange. MS06 used an identified phone number but on occasions used pre-paid phone services subscribed in his name.
Once he took delivery MS06 took the money home to count it and then contact the person arranging for the collections with the total and for instructions as to the deposits. He received 0.75% commission applied to the money collected.
From February 2014 until February 2015 MS06 received amounts from $87,000 to $300,000. The couriers were unknown to him. He was arrested on 3 February 2015 after a cash collection and charged with an offence contrary to s 400.9(1) Criminal Code Act 1995. This was for an offence of dealing with money reasonably suspected to be the proceeds of crime, the value of the money at the time of dealing amounting to $100,000 or more.

April 7, 2014 - $250,000

On or about 4 April 2014 MS06 received a text message from his brother “Token please for old party will give you day after tomorrow”. This message was a request asking MS06 to send him a serial number for the collection of money from someone MS06 had met previously.
On 5 April 2014 MS06 replied with a serial number DA05411414.
On 7 April 2014 MS06 was messaged from telephone number 0402 34X XXX used by the offender. The exchange is set forth in para 62 of the agreed statement of facts.

“OFFENDER: Hi Mate, I’ve got tokens for u today. But I need to drop them off to u as early as I can. As I’ve got to catch a flight at 10am. So can u let me know a time and a place I can meet u?
MS06: So see u at AP?
OFFENDER: At the airport? Whereabouts at the airport?
MS06: 8am MACER.
OFFENDER: Is it possible to meet you at Five Dock?
MS06: 5 Dock may b 8:45.
OFFENDER: 213 Parramatta Road, Five Dock. It’s McDonald’s. 845 works for me, thanks.
MS06: Okay.
OFFENDER: Hi Mate, I’m here but I parked in the KFC car park.
MS06: M here kfc.”

The use by the offender of the phrase “I’ve got tokens for you” must be a reference to a parcel of money intended for delivery to MS06.
At 2.44pm MS06 messaged his brother “250 Wisool pure”. This is expressed in his mother’s first language and represented confirmation of the collection, and confirmation of the sum of $250,000. According to MS06 who remembered the courier he looked like a workman and the exchange occurred so quickly they did not speak.

April 10, 2014 - $200,000

On 9 April 2014 MS06 sent a message to his brother with the serial number ED07234417. His brother responded “Plz on your mobile same guy will give you 200”. This conveyed another delivery from someone known to MS06.
About 9.30am on 10 April 2014 the offender sent a message to MS06 on mobile phone 0431 07X XXX. This exchange appears at para 67 of the agreed statement of facts.

“OFFENDER: Hi Mate, I’ve got a token for u. What time r u free?
MS06: Depends where u are? M at the airport? So w r u?
OFFENDER: I’ll be in Auburn till 1pm and then I can meet u where u like after that.
MS06: What about 45 m in Auburn? Should I come?
OFFENDER: Yeah OK just message me 10 minutes before u get to Susan St car park.
MS06: 10 min.
OFFENDER: Thanks I’ll be standing out the front.”

Once again the offender referred to having a token from MS06 which must have been reference to the parcel of money for delivery.
They met in Susan Street, Auburn, where the offender handed him a parcel of money in respect of which he messaged his brother at 1.42pm “2 pura”. This, in his mother’s first language, conveyed that he had counted exactly $200,000.

UCO1900

April 9, 2014 - $149,950

On 9 April 2014 the undercover operative working with the Australian Criminal Intelligence Commission communicated with someone overseas to arrange a cash collection in Sydney whereupon he was to meet someone unknown to him after contact by way of SMS. Contact was made with the offender and they arranged to meet that afternoon.
About 3.20pm the undercover operative met the offender in a car park at Wolli Creek and went with him to a Holden Commodore BCQ XXX where they both entered. The offender occupied the driver’s seat. The undercover operative handed him a $5 note which he checked against his telephone and then retained. He indicated to the operative that the green enviro bag in the front of the car had “150”. The operative placed this bag inside a sports bag and asked if there was more, to which the offender replied there was more but his boss would direct him when to move it. The operative declined an offered replacement $5 note.
They separated and later the enviro bag was found to have in it $149,500.

MS08

This person moved to Australia in 1999 and worked as a taxi driver. In 2011 or 2012 he met a Pakistani male though two common friends who worked at Dubai Exchange, a foreign exchange company operating in the Westfield Shopping Complex at Parramatta.
In July 2013 the Pakistani male asked MS08 if he wanted to earn money by depositing funds into bank accounts and he agreed. The process was explained to him. He would access an email address for instructions and details of money to be collected and deposited before collecting the money from pre-arranged locations.
Once collected he was to confirm the accuracy of the amount and deposit it as instructed in the email. He was then to upload the deposit slips, or receipts, to the email address. He was given a fictional name to use and promised a 5% commission.
He was provided a SIM card to facilitate the transactions and would receive calls on this number. He changed phones every two or three months and provided the new number each time to the Pakistani man.
Between 2013 and 2014 he used about eight different numbers to communicate with the Pakistani man and people from whom he collected money. He was provided a Blackberry by an Islander man from whom he collected cash on several occasions. He communicated with the Pakistani man by way of WhatsApp and Blackberry Messenger.
He used the serial number system, as did the others, which he communicated to the Pakistani man, who also provided him with an electronic money counter.
After counting, the money was divided into $10,000 bundles and then stored wrapped in cloth in his washing machine. He was told never to deposit sums greater than this. He would deposit up to $100,000 a day upon instructions via email, and on occasions this would increase to $200,000.
He recorded his transactions in a notebook, including his commission which he took before banking. This was seized by police. He also maintained spreadsheets. He did not know the people who gave him the money delivered in various styles of bag.
The Pakistani man travelled back and forth between Australia and Dubai. His family lived in Australia. MS08 would attend his home to deliver his commission from these transactions.
He was arrested and charged with knowingly dealing with the proceeds of crime.

April 9, 2014 - $200,000

In his notebook for this transaction MS08 recorded his commission of $1,000 for the management of $200,000; there were corresponding entries in the spreadsheet. Police intercepted texts between him and the offender using 0481 07X XXX. The exchange appears at para 100 of the agreed statement of facts.

“MS08: Slough Avenue, Silverwater, dead end of street.
OFFENDER: I’m here. How long will u b?
MS08: 1 min.”

The police intercepted a telephone call between them at 4.59pm when the offender told MS08 his location. Before their meeting the offender spoke of having a token and they arranged to meet. After the delivery MS08 took the money home and then confirmed the amount was correct to the Pakistani man.

April 14, 2014 - $250,000

The notebook and the spreadsheet recorded this transaction including the commission retained by MS08. Texts with the offender using 0431 07X XXX were captured. These appear at para 108 of the agreed statement.

“OFFENDER: Hi Mate, how’s it going? What time r u free to meet up tonight?
MS08: How about 7 around Silverwater area?
OFFENDER: Sounds good. Same place as last time?
MS08: OK.”

April 17, 2014 - CANCELLED COLLECTION

On this date text messages with the offender using 0431 07X XXX were captured. These appear at para 110 of the agreed statement.

“MS08: Can we meet around 12, mark?
OFFENDER: Yeah mate whereabouts?
MS08: Same place Silverwater.
OFFENDER: Hi Mate sorry but I just got a message that your token is cancelled today.”

MS04

This person came to Australia in 2009 from Afghanistan. He owned and operated a money exchange business which included the transmission of funds overseas upon which he could earn a commission.
Following the same system discussed in the other transactions, when asked to do so by a man from Tehran he collected money in Australia for deposit into accounts upon instructions. The $5 token system was employed once again.

April 10, 2014 - $80,000

About 1pm on this date he transmitted the serial number of a $5 note to the man in Tehran. From 5.15pm he and the offender exchanged texts, the offender using 0431 07X XXX. This exchange is at para 117 of the facts.

“OFFENDER: Hi bro I’ve got to meet up with u tonight whereabouts r u and what time do you want to Weetabix up
MS04: 21 Park Rd Auburn 9pm.
OFFENDER: Okay bro thanks.
OFFENDER: Just got here.
MS04: Com 5W.
OFFENDER: What’s that?”

He telephoned the offender at 8.53pm for the offender’s location and there received no less than $80,000 from the offender. He received money on nine occasions in sums of less than $100,000 up to $300,000, and received a commission of $1,800 for each $100,000 he collected

April 15, 2014 - $80,000

From 5.09pm on this date he and the offender exchanged texts, the offender using 0431 07X XXX. This exchange is at para 122 of the statement of facts.

“OFFENDER: His Mate how’s it going? What time r u free to meet up tonight?
MS04: 9pm 21 Park Rd Auburn, is it OK?
OFFENDER: No worries bro thanks.
MS04: OK see you bro.
OFFENDER: Hi Mate I’m here.
MS04: 5 m com.”

The offender attempted to phone MS04 at 5.37pm to 5.39pm but the call went over to voicemail. At 9.04pm he telephoned the offender regarding the location at which they were to meet, there the offender handed him no less than $80,000.

MS05

MS05 moved to Australia in 1981, was naturalised in 1992, and ran his import/export business between Pakistan and Australia.
On 28 September 2010 he returned to Pakistan to visit family and friends in Karachi where he met “Male A” with whom he exchanged contact details. “Male A” owned a money exchange business in Pakistan and asked MS05 if he wished to make extra money under the same type of arrangement.
In October 2010 he agreed to participate. He engaged upon cash collections of between $200,000 and $500,000 and deliveries between October 2010 and June 2014.

April 14, 2014 - $200,000

Using service 0469 09X XXX he communicated by text, with the offender using 0431 07X XXX. The exchange is at para 138 of the statement of facts.

“OFFENDER: Hi Mate how’s it going? What time r u free to meet up?
MS05: I’m in Granville.
OFFENDER: OK whereabouts I can be there in 30 mins?
MS05: [ADDRESS REDACTED]
OFFENDER: Thanks mate.
OFFENDER: Hey Mate I’m here, how long till u get here Mate?
MS05: Where r u?
OFFENDER: Hi Mate what time r u free? Hi Mate u there?
MS05: Can u com tomorro?
OFFENDER: Sorry it has to be tonight?
MS05: I’m far away.
OFFENDER: I’ll meet u wherever u like.
MS05: Come in half an hour at the same place.
OFFENDER: OK thank you. I really appreciate it.”

They met and the offender gave him no less than $200,000.

MS02

MS02 came to Australia in July 2008 from India. In 2013 he returned for a wedding and there met two brothers who ran a Western Union and Moneygram transfer business. They told him they had a money transfer business in Sydney with many clients from whom he could collect money and deposit it according to instructions.
After he returned to Australia sometime in January 2014 he telephoned the brothers and arranged to register with AUSTRAC, the acronym for the Australian Transactions Reports and Analysis Centre.
He set up a company to be used for bank accounts in the Commonwealth Bank of Australia, Westpac, St George, and ANZ Banks, and was given the name of an accountant in Canberra for the lodgement of taxation returns. This was provided by one of the brothers named Raja. Raja told him he would arrange for others to pick up money for delivery to him when ready and would provide his number to those others.
In the system employed, MS02 would be contacted in Australia by SMS and telephone calls, and then a meeting would be arranged, most often after work. Each time he collected money and deposited it into the accounts held as instructed, after which it was transferred to overseas by telegraphic transfer. Depositing the money took between one and three days.
On three or four occasions Raja instructed him to give the money to people in Sydney rather than depositing it into accounts. On these occasions a contact number was provided with arrangements for the handing over of between $10,000 and $50,000.

April 15, 2018 - $102,120

He used 0470 12X XXX to communicate with the offender, using 0431 07X XXX. The exchange relevant here is at para 153 of the agreed statement.

“OFFENDER: Hey bro r u around tonight? I’ve got a token for you.
MS02: Yes I c u after 10 where do u wanna c me?

OFFENDER: OK Mate I’m out west so anywhere there. Whereabouts r u?
(I will just interpolate here the facts refer to MS05 here, it’s clearly a typo, it should be MS02)
MS02: I’m at Blacktown.
OFFENDER: Sweet do u want to at the corner of Kurrajong Crescent and Reservoir Road I’ll be there in 20 minutes?
MS02: OK I be there in 16 minutes.
OFFENDER: OK.”

He called the offender’s number but it went to voicemail. They met and the exchange of money occurred whereupon on 16 April 2018 he deposited the money into three of his accounts in eleven transactions in sums approaching but less than $10,000. Telephonic transfers occurred thereafter with the funds withdrawn by Raja.
There were also amounts of $1,000, $500 and $2,000 to $100 deposited by persons unknown into the Commonwealth Bank in New South Wales and Victoria.

PRIOR ARREST AND CONVICTION

The offender was arrested on 17 April 2014, and on 5 August 2014 before Garling ADCJ was convicted and sentenced for one offence contrary to s 193B(3) Crimes Act. This was in respect of another such transaction, the final one in the sequence of his offences, with the sentencing judge unaware of any of the earlier episodes.
Applying a discount of 25% his Honour specified a sentence of imprisonment of 18 months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999. His Honour came to this decision upon the offender’s purported good character, the absence of any relevant antecedents, and the need for assistance he would provide for his mother if allowed his liberty. His Honour found the likelihood of re-offending to be small.
The offending dealt with on that occasion bore the characteristics of transactions before it with which the Court is now concerned but the proposed exchange of $150,000 failed because of the intervention of the law enforcement agency which arrested him. Another $325,520 was found in his home when it was searched. He was not charged with the current offences until 10 October 2017.
As is often the case in sentencing proceedings the offender has chosen not to give evidence in respect of the conduct to which he has pleaded guilty, the extent of his participation, or with regard to any of the subjective matters advanced on his behalf. The caution urged by Smart AJ in Qutami [2001] NSWCCA 353 is apposite here in light of the approach taken by the offender in earlier proceedings determined before Garling ADCJ to which I shall now refer.

PROCEEDINGS BEFORE GARLING ADCJ

On 5 August 2015 before Garling ADCJ the offender adhered to his plea of guilty to an offence contrary to s 193B(3) Crimes Act in respect of the last of the twelve transactions upon which he engaged. His Honour imposed a sentence of 18 months suspended pursuant to s 12 Crimes (SentencingProcedure) Act 1999.
The transaction compared to the conduct upon which he engaged in the preceding eleven transactions with which I am concerned. On this occasion the police intervened. He was found in possession of $150,000 when arrested, together with a Blackberry, a mobile phone, and, upon a later search elsewhere, police located sums including $25,000, $50,000, $40,000 and $10,000. All in all $475,520 was seized.
The offender did not give evidence but his Honour’s decision was informed by the following matters drawing upon the material tendered to him:

(a) He was 28 years of age.

(b) He had no criminal antecedents.

d) The offender relied upon a report from psychologist John Machlin of 15 June 2015 speaking to an alleged gambling disorder, the death of his father in a collision when was the offender was aged 16, and his dependent personality, insecurity and submissiveness. This his Honour found of little significance.

(e) A clinical psychologist provided counselling and treatment for gambling.

(f) The offender was of good character with a good work history.

(g) He attracted a discount of 25% for his early plea.

(h) His mother was not well and relied heavily upon him.

(i) He expressed remorse and was in a stable relationship with supportive friends and family.

After referring to the view of Haesler DCJ in other cases, his Honour dealt with the purposes of sentencing and considered statistics from the Judicial Information Research System, for an indication of the sentences imposed for such offending. His Honour then wrote at p 4:

“I have concluded that the offence is so serious that it would attract a term of imprisonment. I have concluded that after taking 25% for the plea of guilty that terms of imprisonment will be 18 months. I then turn to whether or not such imprisonment should be suspended and when I take into account what is really a very strong subjective case that includes no criminal record, a person previously of good behaviour and good character, a good worker, a person who needs to some extent to look after his mother, although that is not of great importance, the fact that this was all brought about by gambling, the fact that he has now taken steps to overcome his gambling problem, it is probably unlikely he would re-offend in this way, you can never be sure with a gambler of course.”

His Honour concluded that it was appropriate to suspend the sentence. The fallacy from which his Honour was called upon to decide this matter included:

“...what is really a very strong subjective case that includes no criminal record, a person previously of good behaviour and good character, a good worker...”

His Honour was left with this false impression by the omission of any reference to the earlier eleven occasions when the offender transacted as described in the facts. The offender could not have been in any way doubtful of the extent of his criminality when the matter was allowed to proceed thus.

SENTENCES UPON OTHERS CONCERNED

MSO2

On 14 August 2015 Huggett DCJ sentenced MS02 for one offence of dealing with $249,750 cash reasonably suspected to be the proceeds of crime in contravention of s 400.9(1) Criminal Code Act 1995 (Commonwealth).
This provides the offence of dealing with money or other property when it is reasonable to suspect it to be the proceeds of crime and the value exceeds $100,000. The maximum penalty provided is imprisonment for three years and a fine represented by 180 penalty units.
Her Honour summarised the factual premises upon which sentence was to be determined at p 2 of her judgement with reference to the move to Australia by MS02 from in India in 1975 and his participation in an Indian money laundering scheme after travelling to India in December 2013 and his return to Australia in January 2014, when he arranged for a company to be registered with AUSTRAC, and opened bank accounts, after which he collected bulk cash which he passed on to others for transactions of less than $10,000 for transfer overseas.
This method was described as Hawala pursuant to which value of the money could be moved across international borders without the movement of the cash in specie. The transaction the subject of the charge occurred on 1 May 2014. He participated in conversation with police after his arrest, disclosing the nature of the arrangement, and his conduct.
Her Honour found that the evidence established that MS02 was part of the Indian money laundering syndicate, he arranged for the incorporation and registration of a company with AUSTRAC as a money remitting business for the commission of his offence, and there was no legitimate trade or maintenance of adequate records.
He had participated in telephone communications regarding this offence with efforts to maintain his identity and times and places of meeting confidential. He used a telephone subscribed in a false name and took delivery of the money for delivery into amounts of less than $10,000 expecting to be between $1,200 and $2,500 for his role.
Her Honour could not determine the full extent of the enterprise but the role he played went beyond a mere recipient of the money for deposit. He had considerable active involvement in the planning and ultimate commission of the offence designed to avoid the mandatory reporting requirements.
Apart from his plea of guilty there was no evidence of remorse but he was forthcoming with information regarding the cash, where it was to be found; the degree of assistance was assessed to be at a low level.
Her Honour dealt with his subjective case, including his family circumstances, education and background, and employment history. He had an irrelevant history of past offences. His wife and sons suffer from epilepsy. She was unable to drive. Prospects for rehabilitation were guarded.
Her Honour imposed a sentence of imprisonment for 15 months to be released upon a recognizance release order after serving eight months.

MS08

On 24 August 2017 Hock DCJ sentenced MS08 after he pleaded guilty to dealing with $2,010,000 intending it to become an instrument of crime contrary to s 1.3(1)(B)(i) Criminal Code Act 1995 (Commonwealth) for which the maximum penalty is imprisonment for 25 years and a fine represented by 1,500 penalty units.
Taken into account on sentence was an offence of dealing with $311,940 reasonably suspected to be the proceeds of crime contrary to s 400.9 of the same legislation, in contravention of which a maximum penalty of imprisonment for three years and a fine represented by 180 penalty units was provided.
The offender received bulk cash totalling $2,010,000 on 15, 19 and 20 September and 6, 8 and 10 October 2017, and conducted 214 transactions depositing funds into 54 accounts held in six banks. The deposits were structured to avoid cash reporting requirements. The extent of the conduct upon which he engaged is reflected in the items seized by police when he was arrested; they are summarised in her Honour’s judgement.
His personal history included his marriage and the premature birth of their child who died three months afterward. He was diagnosed with an adjustment disorder and depressed mood. He was found to be remorseful supported by the assistance he gave and his undertaking to assist in other proceedings. The assistance was assessed to be high and the plea of guilty attracted a discount of 50%. He was found to be unlikely to re-offend.
He was sentenced to imprisonment for four years six months with a non-parole period of two years and nine months.

MS06

On 1 September 2017 M L Williams SC, DCJ sentenced MS06 charged with one offence contrary to s 142 Anti-Money Laundering and Counter-Terrorism Financing Act 2006. This provides for an offence when a person is, or causes another person to become, a party to two or more non-reportable transactions, and having regard to the manner and the form in which the transactions were conducted, including the value of the money or property in each transaction, the period of time over which the transactions took place, the interval of time between any of the transactions, and the location where they took place, and any explanation made by the person as to the manner or form in which the transactions were conducted, it would be reasonable to conclude that the person conducted, or caused the transactions to be conducted in that manner, or form, for the sole or dominant purpose for ensuring, or attempting to ensure, that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to be reported under s 43 of the Act.
The maximum penalty specified for this offence is imprisonment for five years and a fine represented by 300 penalty units.
The basis of this offence was the offender’s participation in transactions to avoid reporting requirements, the total value extending to $654,660.
He was sentenced as a cash collector. He deposited the structured amounts to avoid the reporting threshold of $10,000. He took possession of the total sum between 2 October 2014 and 28 January 2015 and made 85 deposits into 20 bank accounts at four banks. He was acting under direction of another whose identity is redacted from the judgement.
He participated in an interview in which he disclosed his association with this person, he received amounts up to $80,000 at a time, and that he deposited the funds in false names.
He had no prior convictions. His background and circumstances were brought to account, including that he came to Australia from Pakistan.
He received $4,200 for his efforts, though his recollection is it would have approximated $2,000.
He was sentenced on the basis that it was at the lower end of the range of offending. He was allowed a discount of 25% and upon conviction was sentenced to imprisonment for three years three months including a non-parole period of 18 months.

THE OFFENDER

The offender was born in 1987 and therefore will reach his 34th birthday this year. He has an antecedent record limited to one offence on 17 April 2014 of recklessly dealing with proceeds of crime. This occurred after the offending with which I am to deal, but it was part of the ongoing conduct as he engaged upon the distribution of money which, amongst other things, could have had as its purpose its delivery into the legitimate economy or for some other nefarious purpose, and in any case to mask it from its source.
The impact of the last offence, earlier determined, in the determination of sentence in these proceedings is to provide context as the end transaction in the series in which he engaged, and is relevant to the submission made on his behalf about the delay in the disposition of this matter years after the date of the offences.
He was assessed for the purposes of a sentence assessment report written on 3 October 2019. This refers to the supportive relationship he enjoys with his wife and his child. He is attributed with financial stress due to gambling debts and his perception that his misconduct provided the opportunity to recover from them. It is said that his increased gambling activity has led to debt and unpaid bills. Since this offending, he has gambled no more than $50 and is financially stable. He is attributed with recognition that his actions were wrong and with understanding of the impact on the broader community. His perceptions of the impact are not further explained in the report; nor are the reasons for his perception that his conduct was wrong.
He is willing to undertake intervention and has already completed counselling. This I expect is a reference to counselling for gambling to which I will refer. He is willing to perform community service work. He is assessed at a low level of re-offending. Community Corrections will suspend supervision forthwith if it is imposed by the Court unless he is sentenced to imprisonment to be served by way of intensive corrections order. No conditions other than supervision are indicated which would in any event be suspended forthwith. He is suitable for community service which can be provided for 21 hours per month.
There were a number of documents tendered in the offender’s case.
Dr Paul Pusey, clinical and forensic psychologist, provided a report on 14 February 2019 based upon self-reporting, and a review of documents concerning the offending, and earlier reports from John Machlin and Sharon Hill.
He lives with his wife and six month old daughter, who would now be a little more than 12 months older. There is nothing remarkable from his home life discussed here but it is noted that throughout these reports and other documents this is said to be a stable relationship in which he has shown dedication and commitment to hard work to support his wife and child.
Regarding the offending he is attributed with the following at pp 2-3 of the report:

“...my offence was motivated by a fantasy. When I did it (engaged in his offending behaviour), I thought it would get me back to where I started, and address my immediate debts. In retrospect, this whole process has shown me that there’s more to life than drinking and gambling.
...at the time I did this, I was motivated by debt. I was able to rationalise what I was doing. When I thought about the risk associated, I lowered it in my mind because it was money that I was transporting, not drugs, or something bad. I was young and dumb, and I didn’t think about the long term consequences or my risk of getting caught.”

The reference to his age is noted. The offending was between 3 and 15 April 2014, and his date of birth was in June 1987, thus he was approaching his 27th birthday at the time of the offending.
The assertion that he did not think of long term consequences I also note. The steps in counter-surveillance implicit in the description of his offending suggest otherwise, as does the amount of money involved in the offence, which he must have appreciated was at least of significance, if not a matter of some substance.
As to his motivation, he is attributed at p 3 with:

“...my decisions were based on fear. The fear of losing my house, and the fear that I was in debt to some shady characters motivated my decisions I was making to service my debt.
I felt ashamed of what I’d got myself into, I felt I had to resolve it independently. That is why I didn’t open up about my problems to either friends or family.”

He claimed to have poor distress tolerance and emotion regulation skills. He is attributed with remorse expressed thus:

“I feel guilty for what I’ve done. I regret committing the crime itself, but I also regret the position that I’ve put my family in. If you asked me to do the same thing now, I tell you to get fucked. It was done out of desperation more than anything.”

He is not attributed with any representation to explain why he regrets committing the crime. His psycho/social history includes the death of his father in a motor collision when the offender was aged 16 years. This was traumatic for him, his father was his idol. Otherwise he was raised in a caring family environment subject to the financial challenges that followed the death of the family breadwinner. This affected the family for years, he said, and he left school a year later to help provide, although he concedes that he did not like school and might have left regardless. These years concentrated his focus upon money and the need to meet bills.
He said his father would have kept him from gambling, steroids and alcohol. He has a good relationship with his mother, and his sister and her husband.
The reference to steroids is not replicated elsewhere in the material tendered. I have no information regarding his use of any such substances, the quantities, or their purpose.
His developmental years were normal. After achieving his school certificate he became a plumber, after which he achieved an Advanced Diploma in Plumbing and other trade qualifications. I refer to these items later in the judgement. He has a consistent work history but he lost positions after publication of his misconduct in the press. He is currently employed which assists his wellness and reduces his risk of recidivism.
He is well supported by his wife for whom he wants to work and justify her faith in him. He has a good network of friends and a strong marriage.
He acknowledged consumption of alcohol socially but at the time of the offending drank more often and more extensively to accompany his gambling. This was cued, to use the term adopted in the report, by the group with which he was associating and with whom he wanted to conform. He has now linked with more positive personalities. On this history the psychologist suggests substance use pathology which was discussed when he sought treatment for his gambling. There is no quantification of his alcohol consumption offered.
His gambling was initially social but progressed; his motivation was to make money and then chase his loses. The style of gambling is not discussed here. In other documents there is reference to poker machines. Gambling occurred when he was drunk, he used his credit card, and when he lost more he would become depressed and drink more. He underwent counselling through Wesley Mission, there are reports on this to which I will come.

He is reported to have an unremarkable personal health history though his perception is he is currently unfit. His mother has high blood pressure and there is a family history of diabetes. He has had no intervention by Mental Health other than counselling for his gambling for which he now feels no need. He denied symptoms that might be found in depression as set forth on p 7, though on psychometric testing he reported a mild disturbance of mood in the two weeks leading to the assessment. This was upon one form of assessment. On another he was found to have depressive symptoms of a mild level of intensity, stress related symptoms of a normal level of intensity, and anxiety symptoms of a moderate level of intensity, within the seven days up to the assessment. He was found to have a normal level of functioning. There was no suggestion of major psychiatric or psychological pathology, and there was indication of a substance use disorder.
He was assessed for impulsivity; he was found to most likely engage in impulsive behaviour in the pursuit of new experiences, and a pursuit and enjoyment of exciting activities and to a lesser extent is likely to engage in impulsive behaviour in response to tendency to fail to consider consequences.
The nature of the offending over the timeframe, and the arrangements for the commission of the offence, do not suggest impulsiveness, though his propensity for gambling, if it is true, would perhaps be explained by this trait.
His risk for recidivism is said to be low for the reasons discussed at p 10 of the report. The significant event in his life was the loss of his father and the consequential impact upon him. The influence of others is discussed in this light.
I have noted in this report the absence of any information on the nature of the gambling upon which he embarked, when he did so, the extent of his losses in the course of it, and the extent of the debt he claims to have accrued along the way. The general statements regarding inappropriate associations are, I find, of limited assistance. For example, from p 10 of the report I note the following:

“Mr Kurtulmus acknowledged that his problem behaviours were primarily influenced by the behaviour of those around him in addition to his ability to avoid scrutiny from those individuals who could potentially have exerted some level of influence over his behavioural decision making. The development of the ability to understand his ability to retain his individual behavioural drivers, even within a group context, which challenges them, and to question and have questioned the personal utility of his behavioural choices, seems to have been derailed by the loss of his father at the age of 16, the psycho-social changes he had to make, the response, and likely his prolonged bereavement response to this event.”

The validity of this observation remains untested in the absence of evidence providing a reliable and comprehensive chronology of events beginning with the loss of his father and continuing through the circumstances of his life thereafter, which included his successful training and study towards his trade qualification with further additions thereafter.
I would accept that the loss of his father, if their relationship was as it is reported here, would have had a profound impact upon him, but there is not sufficient material before me upon which to accept the assertions by the psychologist attributing to that tragedy the foundational characteristics upon which it is said the offender, to paraphrase, lost his way. The report continues at para 54:

“It would appear that the main factors relating to Mr Kurtulmus’ risk of recidivism, either at a general offending level, or in relation to the charges for which he is before the Court, arise from the loss of insight regarding the need for consistent consequential thinking which includes both short and longer term outcomes in addition to the potential impact relating to a significant rupture to a sense of self.”

I am not entirely clear what is meant by the final part of this passage, but allowing full measure for the words used as I interpret them, it remains that upon the facts to which the offender has pleaded guilty the implementation of the tactics patent in the commission of the offence, and the communications that he made to each of the co-offenders with whom he engaged, do not suggest impulsiveness, or lack of consistent consequential thinking, in terms of short term or longer term outcomes.
This report draws primarily upon the representation by the offender, with the aid of the results of psychometric testing, which were largely unremarkable in the circumstances, bearing in mind that the offender must have been anticipating at least the possibility of imprisonment. Upon that material in combination and including the documents to which the psychologist must have had access, he has offered an opinion which could be summarised in the following terms:

(a) The offender grew up in a loving family environment until the tragic loss of his father to whom he was close.

(b) This had a significant impact upon him.

(c) He left school to assist family finances though he might have taken that course in any event because he did not like school.

(d) He succeeded in his apprenticeship as a plumber and gained further qualifications thereafter which one would expect were the result of his commitment to the courses undertaken.

(e) Thereafter in social settings he drank alcohol with work companions who were in some way deleterious to his interests with a consequence that social gambling became problematic leading to debt that he was too embarrassed to expose to family and friends,

(d) He therefore decided to resolve his problems with these offences.

The suggestions in the two passages quoted above I do not accept as reliable in the absence of evidence to provide the foundational basis upon which the psychologist appears to form the views given. I raised in the course of the hearing the absence of evidence from the offender. Moreover the bare summaries of propositions of fact advanced by the psychologist are, without more particularity, insufficient to justify the decision to find that the opinions given are reliable.
I accept the representations in the report regarding the offender’s wife, and his wish to provide for her, and to justify her faith in him; this is strongly supported in other documents provided.
The psychologist John Machlin wrote a report on 15 June 2015 offering his opinion upon the results of interview and psychometric testing. This was for the proceedings before Garling ADCJ and thus the assessment was within the context of the limited offending in the twelfth transaction without any reference to the earlier eleven transactions. His family history here is largely as it appears in the Pusey report with some additional detail.

“In earlier times he had a love/hate relationship with his sister to whom he became close after his father’s death. He left home at age 23 and purchased a property with a friend. There were short term relationships until his relationship with his current partner”

I understand this to be his wife. He returned home to live with his mother after his arrest in 2014. This is additional information to that in the report from Dr Pusey.
At the time of the offending he was 26 approaching 27 and thus, by then, held financial interest in property for some three years or thereabouts. There is no further information regarding this however and whether the property could have been used to meet whatever his debts might have been.
He was an above average school student but after his father died his attitude suffered, he truanted, and left to pursue his plumbing career.
He gave 80% of his earnings to his mother and, even though this left him little, upon his mother’s encouragement he persisted to improve the circumstances with a good position in 2013.
He had no medical complaints and there were no family or mental health problems.
He was a social drinker without any problems with alcohol, although his partner indicated that under the stress of those proceedings he was drinking more. He used cocaine recreationally in the past but no longer.
This report provides some additional detail regarding his gambling which commenced a year and a half before the offence then charged. It evolved in the country where he would resort to hotels with his work colleagues to drink and play poker machines. When he returned to Sydney his gambling escalated to losses of $500 to $1,000 per week leading to debts of up to $12,000, leaving him behind with mortgage payments. The report includes at p 3:

“Erhan related that threats were made against him to the effect that he could be beaten up, or his house could be damaged, or ransacked. It was unclear if the threats were direct or implied, but his perception was that he would be in trouble if he didn’t pay his debts, and he mentioned the need to avoid certain people at times. He said ‘a friend of a friend’ offered him a way to make quick money and he saw it as a way out.”

These attributions were not the subject of any other evidence before me. The implication of duress has not been developed in the conduct of the matter. The lack of detail given, as reflected in the body of that passage, the absence of evidence upon the fact, leaves no basis upon which to find that these perceptions motivated the offender.
The circumstances of the offending under considerations are discussed, he did not dispute the facts and acknowledged his intention to plead guilty to the limited offending with which he was then charged. According to Mr Machlin at p 4:

“He conveyed that he participated in illegal activity as a way of paying off his gambling debts. He was asked to ‘pick up money and deliver it’. The money stored at home was all part of the same operation and did not belong to him. He said he did not know what the money was for, and did not ask.”

The weight to be given to this representation is limited. It was made in circumstances of the prosecution for one offence, the twelfth in the series upon which he engaged, without reference to the eleven preceding transactions. The assertion that he did not know what the money was for and did not ask carries the implication that in addition he did not know where the money was from or what the activity was that generated it. His asserted wilful blindness with regard to that one fund must be considered now in the context of the bulk of the funds which he managed throughout the misconduct before this Court, including the sophistication of the methodology employed.
In a section dealing with the consequences of his misconduct there is reference to the assistance given by his mother to repay his debts, the counselling to address his gambling, and his regret for his wrongdoing and the financial gain, at massive cost to him with his future in jeopardy. He lamented his criminal act. He accepted responsibility and did not seek to minimise his offence or deflect blame. But neither did he expose the full extent of his wrongdoing, nor the return for him, from the entirety of his misconduct. Any assertion of remorse attributed to him here must be assessed in the light emitted from the circumstances of the offending before me. For his mother to be able to assist him to repay his debts, in the way the representations are presented in this part of the report, implies at least that the debts for which he was responsible were not insurmountable and could have been addressed without resort to this crime.
He was apprehensive at the prospect of a custodial sentence arising from evidence he had given in proceedings seven years before brought in respect of a stabbing incident; I have no further information regarding this.
His clinical presentation did not include an indication of depression or other reactive clinical conditions. Psychometric testing resulted in a high score for anxiety reflecting his current state of mind. There were no symptoms of severe clinical syndromes, such as thought disorder or major depression. He is described as having answered all questions and volunteered additional information readily. What the additional information was is not clear but it clearly did not include the full range of his misconduct.
The counselling he undertook for his gambling was in June 2014 after the offences in April of that year and, by the time of this report, there were thirteen sessions of one hour decreasing in their frequency. Of this Mr Machlin wrote at p 5:

“Ms Hill indicates that she has applied a broad range of therapeutic techniques. She indicates that “Erhan has been reliable in his attendance.” It appears that he has addressed his problems directly with her and conveys having learnt from his mistakes. He has expressed remorse over his actions. He reports improved adjustments over time, and having distanced himself from poor associates.”

Upon Mr Machlin’s assessment, given the impairment of functioning associated with his gambling, he would appear to have met the criteria for gambling disorder at that time but currently in remission.
The conclusions expressed in this report included:

“Erhan reflected on having missed out on the guidance he would have had from [the] man he idolised. At the same time, he takes full responsibility for his descent into gambling addiction and the areas of judgement behind the current offence.
Discussion of the offence itself is limited to his account of holding and delivering cash. Although he might be cautious about discussing the details he shows a high degree of remorse in terms of: (a) his personal regrets, (b) the stress he has caused, or potentially caused to others and, in particular, (c) his rehabilitative efforts.”

Allowing full measure for this opinion it is based upon but part of a history of offending, and the circumstances leading to it, and is of limited significance in light of the history that is now to be considered. Even with the additional information now available it is not possible to assess the entirety of what would have been relevant facts and circumstances to explain these offences.
Reference to Ms Hill and the passage quoted above is to the Problem Gambling Counsellor from Wesley Mission who provided reports for proceedings before Garling ADCJ, written on 26 May 2015 and 30 July 2015. In the first report Ms Hill notes the attendances to that time and speaks to the therapy provided observing that upon psychometric testing depression and stress were in the high normal range and anxiety was severe. She attributed the offender with an explanation for his conduct, when working at Thredbo in 2013 he saw work colleagues win money from poker machine and thereafter was also successful. Upon returning to Sydney he continued until he experienced severe losses, began to chase them, and borrowed from others, extending to borrowing from one to repay another, leading to a debt spiral. There is no quantification of the losses or the debts accrued.
He is said to have re-established himself as a productive member of society after distancing himself from individuals that he associated with prior to the offences. There is no suggestion here of any fear of threats, or reprisals, for failing to repay debt.
In the second report it is noted he has completed all 15 sessions with his rehabilitation extending to his engagement and taking control of his financial position.
His sister provided an affidavit sworn in June 2019. She provides a family history extended back to when their parents met. His parents’ first child died shortly after birth. After they made their home in Australia they had the deponent and the offender. Their father died in a car collision in 2003, after which the offender took over the senior male role in the household.
His schooling and success as a plumber are discussed with his employment history that concluded when he was first arrested for “these charges”. By reference to later content it appears that she was referring to the prosecution of the offences before me.
After a time he was able to gain further employment which continued at the time of the affidavit. She speaks to his status as a family man and his dedication to his wife and daughter, and to his work ethic. In a section headed “Erhan’s offending” she speaks of his disclosure at 2014 of the earlier charge after he became involved because of gambling issues and debts. At the time of the second prosecution he had been doing well. Throughout the earlier prosecution his family stood by him and she observed his participation in counselling to address his issues. His disclosure of the further offences caused his mother embarrassment in the Turkish community.
He is apologetic for his conduct and since the earlier prosecution he has worked hard toward rehabilitation. He is attributed with regret and his wish to look after his wife and family, he has continuing family support, and she asserts that he has changed.
His wife provided a document written on 6 March 2019. She clearly holds him in close affection. She provides a description of their life together and of his expressions of remorse and regret: detriment to their financial circumstances should he be separated from his family by incarceration is asserted.
In a further reference written on 12 March 2020 she reports that she is, at that time, 28 weeks into another albeit unplanned pregnancy.
There is a reference from his uncle written on 7 February 2019 speaking of his qualities and remorse. His aunt provided a reference written in 7 February 2019 in a similar vein. Others have written on his behalf with their assessments of him formed over the time they have come to know him in their individual circumstances. There is no need to rehearse all of these documents. There was no one required by the Crown for cross-examination.
There is an array of statements and certificates of attainment granted to the offender between 1 July 2009 and 3 March 2015, for driving qualifications, crane operation, fork-lift operation, and logistics, work safety, cardio-pulmonary resuscitation, traffic control planning and occupational health and safety, notification of the completion of his apprenticeship on 4 March 2009 and the related certificates are included in the material.

CONSIDERATION

I find it inexplicable that an offender relying upon such extensive support would yet limit the opportunity his evidence would have given to assess the extent of his contrition and remorse and to gauge with some measure or precision what he might have said about his role in these offences. This said, he has no obligation to take that step, and he suffers no adverse finding from that decision. All that follows is that the Court must assess the objective and subjective material according to well-established principles requiring the Crown to prove beyond reasonable doubt the objective facts upon which it would rely, and the offender left with the burden, upon the balance of probabilities, to establish the matters’ significance to which I have been taken, The Queen vOlbrich (1999) 199 CLR 270.
I have no difficulty finding that the offender has taken great strides toward rehabilitation. Even though I have no sworn evidence upon that point, in addition to the affidavit provided by the offender’s sister I have a wealth of material provided including his work history in recent years, which could ground no other findings.
I would also accept that he regrets his misconduct, but I am not prepared to find, on the material before me, that this is a true reflection of contrition and remorse for the crimes, with recognition of the harm his participation in them has caused generally, or within the specific context within which the impugned money was generated, or into which, and for what purpose it was distributed.
There is no explanation at all for his failure to expose all the transactions in which he was a participant when he was arrested for the twelfth, or for allowing the sentencing judge in the earlier proceedings to determine the matter upon the basis of his perceived good character and lack of past offending. He was not required to admit to offences with which he had not been charged, and he was not required to expose to the Crown, or the earlier Court, other conduct with which this Court is now concerned, but when assessing whether there is appropriate contrition and remorse that he chose to allow matters to proceed as they did, with a positive case presented in support of asserted contrition or remorse, and good character, in the absence of evidence from the offender I would not find in his favour on this point.

I accept the incarceration will cause a burden for the offender and importantly for his wife, their daughter, and their new born, and for his mother also. However these are consequences faced in most cases when offenders are called upon to face their misconduct requiring the imposition of a sentence of imprisonment. It cannot be said that they are so exceptional that a sentence of imprisonment should be avoided.
I accept that the offender suffered significant grief at the loss of his father and that at his age he would have benefitted had his father been present to provide him guidance into adulthood and beyond as a loving father would. However I am circumspect about the proposition that the hiatus left upon his father’s death was such that he could not conduct himself appropriately without having the benefit of his father’s counsel. His achievements in his career, the maturity reflected in the support given to his mother and sister, and the development of his relationship with his wife towards their marriage, are inconsistent with the notion that he could not do so.
I accept that he developed a gambling habit but the suggestion that this evolved against a background of some measure of pressure from his work colleagues, or inappropriate association, I find unpersuasive. His work environment and the social setting in which he and his colleagues resorted to licensed premises to drink, and in due course play poker machines, provided context, but the suggestion there was some undesirable influence, which is the implication the reports provided, I do not accept. I do not accept the implication of duress and fear of consequences to which Dr Pusey referred.

DELAY

A significant feature advanced in the offender’s case is the delay between the offending behaviour before me and the commencement of the prosecution.
To summarise, the eleven transactions occurred between 3 April 2014 and 15 April 2014. He was arrested on 17 April 2014 upon the conduct attending the twelfth transaction and sentenced by Garling ADCJ on 5 August 2015.
He was arrested for the offending before me on 10 October 2017, three years and about six months after his initial arrest, and two years and about four months after the proceedings before Garling ADCJ.
There was provided a table of the steps taken in the course of the investigation when statements were taken from the various participants in the transactions in respect of which the offender has been charged. This was marked Exhibit B in the Crown case and has been added at the end of this judgement as part of it. It is consistent with the evidence that was given before me by Detective Chief Inspector Bryn Ruse on 28 June 2019. He is a senior officer from the Organised Crime Squad of the New South Wales Police Force.
The operation, to use a neutral term, that included the investigation of the offender was a joint task force operation including Federal and State Agencies, one of which was the New South Wales Police, upon whom fell the task of investigating the offender for his crime and initiating prosecution. There was, it appears, a measure of difficulty in the New South Wales Police Organised Crime Squad accessing the holdings that had been gathered by the Federal Agencies in the course of the investigation, but in due course the material was distributed. I would take notice of the fact that these non-traditional law enforcement agencies are circumscribed in the extent to which they can disseminate information that they gather in the course of their work, which may well inform part of the delay in having the New South Wales Police in the position to arrest the offender for these offences. However, overriding that is the need, in my view, for the police to properly investigate the crime including by harvesting the statements that were to be gathered from the various witnesses listed in the table document which forms part of this judgement. That took time, and the factual complexity of the investigation is patent in the summary that I have provided in this judgement. There was delay in terms of time but I am satisfied that the explanations given by the Detective Chief Inspector, and as to be found in the document which is attached and is part of this judgement, explain the reasons why the offender was not arrested and charged until he was.
It was put to me in the course of submissions that there was no reason why the police could not arrest him and charge him when they did. I do not agree with that. The police, and the prosecuting authorities, once they decide to take someone into custody for the purpose of the commencement of a prosecution are duty bound to proceed with all appropriate attention to the matter so that it can be put before the Court as soon as practicable, and they should not take that step unless, in my view, they have reached the point in the investigation in the gathering of evidence when it is appropriate to do so. To arrest somebody and charge them, and then have them sitting in a Local Court proceedings waiting for the matter to progress, is unacceptable, and it seems that in this case, upon the material before me, that was not the course that was chosen.

DISCUSSION

I have written submissions on behalf of the offender and on behalf of the Crown. The Crown correctly identifies the objective seriousness of the offence, but in my view puts it at a level above where it is to be placed. I find this offence to fall about mid-range of objective seriousness, perhaps a little above it. Minds will differ upon this assessment. The Crown’s submission that it falls well above mid-range I am not prepared to accept.
I do not accept the submission made on behalf of the appellant that this offending is at the lower end of the range. The submission that was made in that regard I would note drew upon the structure of s 193B Crimes Act 1900. As I indicated, there are three levels of offending in that section. I am concerned with subs (3) and it is within the context of the offence there created that I determine where, upon the scale of objective seriousness, this offence should fall.
The Crown has pointed out the significance of this type of offence, drawing upon the Court of Criminal Appeal decision in The Queen v Ly (2014) NSWCCA 78 and the guidance provided in para 86 of the judgement, speaking to the seriousness of the offence, how it is to be assessed, including the amount of money involved, which is of high significance, the number of transactions, the period of time over which they occurred, and the source and ultimate use for the money managed in this fashion. General deterrence has a significant role to play.
I am reminded of a particular decision of Atilgan v R [2018] NSWCCA 5, which compares with the matter before me. It involved two counts, one involving $200,050, and another $250,000, in respect of which in each case there was a term of imprisonment imposed. For the first, two years and six months with a non-parole period of a year and six months, and the second greater sum, two years and nine months with a non-parole period of one year and six months. The overall head sentence was three years with a non-parole period of one year and nine months.
The Crown submissions draw comparisons between that offence and the offences with which I am now concerned. In that case the token $5 note system was used. The assertion on behalf of the applicant in that case was that he was engaged in this activity to meet gambling debts. He had a happy upbringing and education as well as a settled domestic relationship that ultimately failed and led to depression. There was a report from a psychologist attributing remorse and there was good character evidence. But, as the Crown points out, that case was not as serious as the matter with which I am presently concerned.
On behalf of the offender I have written submissions minimising the matters that the Crown would rely upon, suggesting that if the line under s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed, in the circumstances of the delay attendant upon these proceedings an alternative to full time custody, specifically an intensive corrections order, is the appropriate option. It is trite to say that this does not arise unless and until I reach a conclusion as to a sentence of imprisonment of two years or less. If my assessment of the matter requires a sentence of a longer period, which I have decided is the case, an Intensive Corrections Order is not the appropriate course. That said, even if I was of the view that a sentence of less than two years was appropriate there would be no option in my view other than to impose a custodial sentence to meet the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act.
The primary submission on behalf of the offender is that if the so-called line in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed, that the custodial sentence to be imposed might be served by way of the Intensive Corrections Order. I have already commented upon that. It was added, in the course of an argument, that I could attach conditions including home detention, or a curfew, and community service, which would reflect an appropriate level of punishment for the circumstances of the case.
A submission was developed upon the delay between the commission of the offence and the commencement of the prosecution, and the corresponding progress towards rehabilitation, and changed circumstances. This is something of a double-edged sword when one considers the authorities dealing with the question of delay to which I have been taken. There could be no measure of uncertainty hanging over the head of the offender in the circumstances in my view, and he has had the opportunity in the time allowed him between the commission of the crime and having been charged to pursue rehabilitation and re-establish his life. He will have thus demonstrated the capacity of rehabilitation which will be brought to his favour in the assessment of his sentence, and once he has completed the custodial component that I am about to specify he will have his life ready to be restored to him with his wife and his children and his extended family.
The cases dealing with delay are well known. The two significant cases though that are relevant to this occasion are, first, Luong v The Queen [2014] NSWCCA 129 and in particular the judgement of Price J dealing with the option that was always open to the offender to bring forth the full range of misconduct so that it could have been dealt with more readily and at an earlier time in the judicial process; that reasoning is clearly apposite here, in my view.
The Crown also referred to the decision in The Queen v Kay (2004) NSWCCA 130 in which consideration was given to the well-known decisions of R vTodd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59. The Crown concedes the fact of delay, the period involved, and that it is a matter that must inform the sentencing decision, but submits that it is not of such a moment as to obviate the need for a custodial sentence, a proposition with which I agree. Thus delay should impact upon the determination of sentence, and ought to be brought to account in the synthesis of factors leading to the determination of an appropriate sentence, but the extent to which it will impact depends upon the circumstances of the case, including the extent to which the offender is shown to have been responsible for the delay in the prosecution of the proceedings.
Delay of itself might, in the particular circumstances, be of limited significance. The extent to which it might ameliorate sentence will depend upon associated considerations. The offender was detected in the commission of the last transaction in the series upon which he engaged, and with which he was charged after the determination of that matter. It was resolved in Court on 15 August 2015. The Court Attendance Notice for the offence, upon which I am to pass sentence, was created on 10 October 2017. When he was arrested for the last of the transactions he clearly knew of his past misconduct. He was not obliged to expose at all the full scope of his misconduct when arrested for the offence resolved on 15 August 2015 before Garling ADCJ, and he therefore is not to be punished for having not done so. On the other hand in court he did more than remain mute about the range of his misconduct and allowed a positive case of good character, and limited antecedent behaviour, to be put forward. He did not acknowledge his misconduct when arrested or it appears with those who appeared for him in those earlier proceedings. In addition to the limited expressions attributed to him about contrition and remorse this further qualifies the impact of the expressions attributed to him then and in respect of these current proceedings. It also ameliorates the impact of delay between when he committed the present offences and when he was ultimately charged with them.
I have already explained where the evidence of dealing with delays is to be found and my comment upon it, but even though I find that the evidence satisfactorily explains the delay it might still ameliorate punishment and, in this case, I find that it does. I find, for the reasons advanced by the Crown, that the impact of delay is limited, but it will provide a basis for a modest reduction in the sentence that would otherwise have been imposed, and the progress toward rehabilitation will be added to the assembly of special circumstances upon which I am prepared to reduce the custodial component and extend the parole period.
Fundamentally the impact of organised crime, so-called, is detrimental to the community as well as to the immediate victims of the misconduct upon which those engaged have pursued their goals. In this case there is no evidence upon which I can find the nature of the activity from which these funds were derived. It would beggar belief to hold that the entire sum of $1,912,070, to be distributed in this clandestine way came from any legitimate activity or source. Thus economic impact is found, first, in the payment of these monies from whoever accessed the goods or services taken in consideration, perhaps in the form of prohibited drug, though that cannot be proven. Whatever the source of the money used by those consumers, to be distributed in this fashion removes it from the legitimate economy to the benefit of those participating in the clandestine organisation at whatever level.
The second impact is the expense to the community of the interdiction, investigation and prosecution before the Courts of those shown to have been engaged in this enterprise. The interdiction, investigation and prosecution for those engaged in money laundering are difficult and expensive. The device of spreading the risk between individuals such as this offender in anticipation of minimising consequences for the crimes implicit in the accumulation of the funds ought not to mask the seriousness of the conduct upon which the individuals engaged in concert with other cells deployed to the enterprise purposes and goals.
The decision not to ask, or otherwise enquire, about the source of the money and the purpose of the clandestine distribution of it, ought not to allow such as this offender to escape the consequences of the significant role entrusted to participate as he did with the large sums of money over eleven transactions.
The purpose of sentencing is set forth in s 3A Crimes (SentencingProcedure) Act. They are:

(a) To ensure that the offender is adequately punished.

(b) To prevent crime by deterring the offender and others from committing similar offences.

(d) To promote the rehabilitation of the offender.

(e) To make the offender accountable for his or her actions.

(f) To denounce the conduct of the offender.

(g) To recognise the harm done to the victim of the crime and the community.

These considerations sometimes overlap, and sometimes point in different directions. In this instance the need for adequate punishment, the prevention of crime by deterrence of other persons, the offender’s accountability and denunciation, and recognition of the harm to the community, require the imposition of a sentence of imprisonment assessed upon the synthesis of objective and subjective matters to which the discount of 25% for utility will be applied.
I am satisfied that the deterrence of the offender and the need for protection of the community are of lesser significance in light of the rehabilitation the offender has been working to achieve. It remains however that in my judgement a sentence of imprisonment must be imposed with a significant reduction in the custodial component to reflect the special circumstances, which I am satisfied warrant a longer period on parole, including that this is the first time he has been in custody, the need to encourage his ongoing rehabilitation, and the circumstances of his family which must add to the punishment he would have otherwise experienced in custody without those concerns.

SENTENCE

Taking into account the additional offence on the Form 1, which I will certify, upon the application of the 25% discount for utility, for the offence of recklessly dealing with the proceeds of crime I impose a sentence of imprisonment consisting of a non-parole period of 1 year and 4 months commencing on 25 March 2020, with a head sentence of 3 years 4 months and 15 days. The offender will be eligible to be released on parole on 24/07/2021.
I will repeat those dates, a non-parole period of 1 year and 4 months commencing on 25/03/2020, from which he will be eligible to be released on parole on 24 July 2021. The head sentence is 3 years 4 months and 15 days.
I am going to leave the exhibits on file for whatever period the parties might require.

Regina v KURTULMUS

Summary Table of Key Brief Items

Date of Statement

Witness

Charges / Cash Collections

07 August 2015

Completed over:

• 12 June 2015

• 17 June 2015

• 22 June 2015

• 29 June 2015

• 07 July 2015

• 30 July 2015

• 04 August 2015

• 07 August 2015

MS01

Cash Collection 1 ($200,000) 3 April 2014

Cash Collection 3 ($200,000) 8 April 2014

01 September 2015

MS02

Cash Collection 11 ($102,120) 14 April 2014

11 September 2015

(Crime Commission Hearing)

MS04

Cash Collection 7 ($80,000) 10 April 2014

Cash Collection 10 ($80,000)

15 April 2014

07 October 2015

Completed over:

• 21 September 2015

• 22 September 2015

• 07 October 2015

MS05

Cash Collection 8 ($200,000) 14 April 2014

30 October 2015

Completed over numerous occasions between: 23 September 2015 – 30 October 2015

MS06

Cash Collection 2 ($250,000) 03 April 2014

Cash Collection 6 ($200,000) 10 April 2014

1st Statement:

08 February 2016

Completed over:

• 01 September 2015

• 16 September 2015

• 21 January 2016

• 08 February 2016

2nd Statement:

28 June 2016

MS08

Cash Collection 5 ($200,000) 09 April 2014

Cash Collection 9 ($250,000) 14 April 2014

05 July 2017

10 October 2017

02 January 2018

Australian Criminal Intelligence Commission

CO1900 - Undercover Operative

Witness 1

Witness 2

Cash Collection 4 ($149,950)

09 April 2014

Date of Statement	Witness	Charges / Cash Collections
07 August 2015 Completed over: • 12 June 2015 • 17 June 2015 • 22 June 2015 • 29 June 2015 • 07 July 2015 • 30 July 2015 • 04 August 2015 • 07 August 2015	MS01	Cash Collection 1 ($200,000) 3 April 2014 Cash Collection 3 ($200,000) 8 April 2014
01 September 2015	MS02	Cash Collection 11 ($102,120) 14 April 2014
11 September 2015 (Crime Commission Hearing)	MS04	Cash Collection 7 ($80,000) 10 April 2014 Cash Collection 10 ($80,000) 15 April 2014
07 October 2015 Completed over: • 21 September 2015 • 22 September 2015 • 07 October 2015	MS05	Cash Collection 8 ($200,000) 14 April 2014
30 October 2015 Completed over numerous occasions between: 23 September 2015 – 30 October 2015	MS06	Cash Collection 2 ($250,000) 03 April 2014 Cash Collection 6 ($200,000) 10 April 2014
1st Statement: 08 February 2016 Completed over: • 01 September 2015 • 16 September 2015 • 21 January 2016 • 08 February 2016 2nd Statement: 28 June 2016	MS08	Cash Collection 5 ($200,000) 09 April 2014 Cash Collection 9 ($250,000) 14 April 2014
05 July 2017 10 October 2017 02 January 2018	Australian Criminal Intelligence Commission CO1900 - Undercover Operative Witness 1 Witness 2	Cash Collection 4 ($149,950) 09 April 2014

**********

Amendments

04 May 2020 - Correct typographical errors

Decision last updated: 04 May 2020

Medium Neutral Citation:	R v Kurtulmus [2020] NSWDC 149
Hearing dates:	28 June 2019, 08 October 2019 & 18 March 2020
Date of orders:	26 March 2020
Decision date:	26 March 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Sentence of imprisonment of 3 years 4 months and 15 days with a non-parole period of 1 year 4 months
Catchwords:	CRIME — Money laundering — Dealing with money suspected of being proceeds of crime SENTENCING — Relevant factors on sentence — Circumstances of offence SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Sentencing procedure — Expert reports SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Anti-Money Laundering and Counter-Terrorism Financing Act 2006 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995
Cases Cited:	Atilgan v R [2018] NSWCCA 5 Attorney General’s application under s 37 Crimes (Sentencing Procedures) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Luong v The Queen [2014] NSWCCA 129 Mill v R (1988) 166 CLR 59 Qutami [2001] NSWCCA 353 R v Borkowski (2009) NSWCCA 102 R v Todd [1982] 2 NSWLR 517 R v Tuki No 4 [2013] NSWSC 1864 The Queen v Kay (2004) NSWCCA 130 The Queen v Ly (2014) NSWCCA 78 The Queen v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Regina (Crown) Erhan Kurtulmus (Offender)
Representation:	James Ly (Crown) Avni Djemal (counsel) (Offender) Director of Public Prosecutions (NSW) (Crown) Zahr Partners (Offender)
File Number(s):	2017/00305393