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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kurtulmus

Details

AGLC: R v Kurtulmus [2020] NSWDC 149
Case: [2020] NSWDC 149
Decision Date: 26 March 2020

CaseChat Overview and Summary

In the matter of R v Kurtulmus, the defendant was convicted of dealing with money suspected of being the proceeds of crime, a matter which was heard in a court in Australia. The nature of the dispute centred on the defendant's involvement in financial transactions that were suspected of being linked to criminal activities. The court was tasked with determining the appropriate sentence for the defendant, taking into account various factors related to the offence and the defendant's personal circumstances.

The legal issues before the court included the determination of the maximum penalty for the offence, the relevance of expert reports in sentencing, and the consideration of special circumstances. The court had to balance these factors with the general principles of sentencing, particularly as they pertained to form 1 offences, which are considered serious criminal activities. The court also needed to provide reasons for the sentence imposed, ensuring that the sentence was proportionate to the seriousness of the offence and the defendant's role in it.

In delivering the judgment, the court carefully considered the evidence presented, including expert reports on the defendant's background and the nature of the financial transactions. The court recognised the defendant's role in the transactions and the potential seriousness of the offence. However, the court also took into account the defendant's personal circumstances and the need for a sentence that would adequately reflect the seriousness of the offence while also considering the principles of justice and deterrence. Ultimately, the court imposed a sentence of imprisonment for 3 years, 4 months, and 15 days, with a non-parole period of 1 year and 4 months.

Orders

Orders of the court

Sentence of imprisonment of 3 years 4 months and 15 days with a non-parole period of 1 year 4 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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