R v MT

[2022] NSWCCA 53

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v MT [2022] NSWCCA 53

Hearing dates:

3 February 2022

Date of orders:

8 March 2022

Decision date:

16 March 2022

Before:

Johnson J at [1]; Harrison J at [203]; Fagan J at [205]

Decision:

Crown appeal dismissed.

Catchwords:

CRIME — Crown appeal against sentence — respondent pleaded guilty to dealing with funds reasonably suspected of being proceeds of crime under s.1 93C(1) Crimes Act 1900 (six counts), attempt to obtain financial advantage by deception under s.192E(1)(b) Crimes Act 1900 (one count) and dealing with money reasonably suspected of being proceeds of crime under s.400.9(1) Criminal Code (Cth) (one count) — two further s.193C(1) offences taken into account on sentence — aggregate sentence imposed for s.193C(1) and s.192E(1)(b) offences — total effective sentence of imprisonment for five years and six months with minimum term of two years and eight months — offences involved total of about $103 million over 15-month period — first ground asserted error by failing to assess individually the objective seriousness of each of the s.193C(1) offences — same indicative sentences nominated for four offences despite very significant differences between amount of money and number of transactions involved in each count — each s.193C(1) charge a rolled-up count—approach to assessment of objective seriousness of rolled-up counts - capacity to consider challenge to indicative sentences as components of aggregate sentence — first ground of appeal established — second ground asserted that overall sentence manifestly inadequate— error concerning s.193C(1) indicative sentences contributed to imposition of manifestly inadequate sentence — significant objective gravity of offences — combined 40% discount for pleas of guilty and assistance to authorities — other strong subjective factors — held overall sentence manifestly inadequate — consideration of residual discretion — substantial ongoing assistance to authorities in new areas since imposition of sentence in District Court — earliest release date imminent — function of Crown sentence appeals — exceptional and unusual case — held Court should not resentence — Crown appeal dismissed

Legislation Cited:

Confiscation of Proceeds of Crime Amendment Act

2005 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Criminal Appeal Act 1912 (NSW)

Criminal Code (Cth)

Criminal Legislation Amendment (Organised Crime

and Public Safety) Act 2016 (NSW)

Cases Cited:

Ansari v R (2007) 70 NSWLR 89; [20071 NSWCCA

204

BB v R [20211 NSWCCA 283

CMB v Attorney General for New South Wales

(2015) 256 CLR 346; [2015] HCA 9

Director of Public Prosecutions (Vic) v Conos [2021] VSCA 367

Environmental Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWCCA 289

Everett v The Queen (1994) 181 CLR 295; [1994]

HCA49

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

HT v The Queen (2019) 269 CLR 403; [2019] HCA 40

Humphreys v R [2020] NSWCCA 144

JM v R (2014) 246 A Crim R 528; [2014] SWCCA

297

Johnston v R [20171 NSWCCA 53

Pearce v The Queen (1998) 194 CLR 610; [1998]

HCA57

Porter v R [2008] NSWCCA 145

R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193

R v Beary (2004) 11 VR 151; [2004] VSCA 229

R v Brown [2012] NSWCCA 199

R v De Leeuw [2015] NSWCCA 183

R v Dodd (1991) 57 A Crim 349

R v Glynatsis (2013) 230 A Crim R 99; [2013] NSWCCA 131

R v Guo (2010) 201 A Crim R 403; [2010] NSWCCA 170

R v JD [2018] NSWCCA 233

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Li [2010] NSWCCA 125

R v Ly (2014) 241 A Crim R 192; [2014] NSWCCA 78

R v O’Connor [2014] NSWCCA 53

R v Rae [2013] NSWCCA 9

R v Samia [2009] VSCA 5

R v Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259

Samarakoon v R [2018] VSCA 119

Shi v R [2014] NSWCCA 279

Subramaniam v R [2013] NSWCCA 159

Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA3I

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215

Xue v R [2021] NSWCCA 270

Yacoub v R [2021] NSWCCA 166

Category:

Principal judgment

Parties:

Regina (Appellant)
MT (Respondent)

Representation:

Counsel:
Mr T Abdulhak (Appellant)
Mr M Johnston SC (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Appellant)
Nyman Gibson Miralis (Respondent)

File Number(s):

2019/215901

Publication restriction:

1. An extensive non-publication order, including a pseudonym order, was made in the District Court under the Court Suppression and Non-publication Orders Act 2010. Those orders continue to have effect in this Court so that the pseudonym is used in this judgment.
2. When judgment is delivered, it will be provided to the parties only and not published on Caselaw, to allow the parties an opportunity to make submissions concerning any proposed redactions to the judgment and any further order or varied order which may be sought under the Court Suppression and Non-publication Orders Act 2010

 Decision under appeal 

Court or tribunal:

District Court of NSW

Date of Decision:

22 October 2021

Before:

His Honour Judge Craigie SC

File Number(s):

2019/215901

JUDGMENT

1. JOHNSON J: This is a Crown appeal under s.5D(1) Criminal Appeal Act 1912 (NSW) with respect to sentences imposed upon the Respondent, MT, by his Honour Judge Craigie SC at the Parramatta District Court on 22 October 2021 for a number of offences of money laundering under s.193C(1) Crimes Act 1900 (NSW) and s.400.9(1) Criminal Code (Cth) and an offence of attempting to obtain a financial advantage by deception under s.192E(1)(b) Crimes Act 1900.

2. A non-publication order (including a pseudonym order) was made in the District Court, having regard to the Respondent’s extensive assistance to law enforcement authorities. For that reason, the Respondent is referred to in this judgment by a pseudonym (which does not utilise his true initials).

3. On 8 March 2022, the Court made orders dismissing the Crown appeal with reasons to be published at a later time. It was appropriate to take this course as the Respondent was eligible for release from custody on 10 March 2022 under his existing sentence.

4. What follows constitutes my reasons for joining in the orders made on 8 March 2022.

The Sentences Passed in the District Court

5. Following pleas of guilty, the Respondent was sentenced for the offences under ss.193C(1) and 192E(1)(b) Crimes Act 1900 (NSW) to an aggregate term of imprisonment for five years, comprising a non-parole period of two years and six months commencing on 11 July 2019 and expiring on 10 January 2022, with a balance of term of two years and six months commencing on 11 January 2022, and expiring on 10 July 2024.

6. For the offence under s.400.9(1) Criminal Code (Cth), the Respondent was sentenced to imprisonment for one year commencing on 11 July 2021 and expiring on 10 July 2022, to be released on 10 March 2022 under s.20(1)(b)(i) Crimes Act 1914 (Cth) by way of recognisance release order, in the sum of $1,000.00 without security deposit, to be of good behaviour for a period of eight months.

7. The effect of the sentencing orders is that the Respondent will be eligible for release from custody on 10 March 2022.

8. The following table outlines the offences under ss.193C(1) and 192E(1)(b) Crimes Act 1900 (NSW) for which the Respondent was sentenced, and states the indicative sentence attaching to each offence as part of the process of aggregate sentencing:

Seq No	Offence Details	Maximum Penalty	Description of Offence	Indicative Sentence
Sequence 4	s. 192E(I)(b) Crimes Act 1900 (NSW)	Imprisonment for 10 years	Between 17 October 2018 and 9 November 2018, at Sydney in the State of New South Wales, did attempt, by deception, dishonestly to obtain a financial advantage, namely $2,500,000 from the Commonwealth Bank of Australia Ltd.	Two years and four months’ imprisonment, (after a discount of 40% from a starting point of four years’ imprisonment)
Sequence 5	s. 193C(1) Crimes Act 1900 (NSW)	Imprisonment for five years	Between 22 January 2018 and 28 March 2018, at Sydney in the State of New South Wales, did deal with property, namely a total of $3,510,125, by engaging in transactions to transfer the said funds from New South Wales to foreign accounts, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	One year and 9 months’ imprisonment (after a discount of 40% from a starting point of three years’ imprisonment)
Sequence 6	s.193C(1) Crimes Act 1900 (NSW)	Imprisonment for five years	Between 9 April 2018 and 31 May 2018, at Sydney in the State of New South Wales, did deal with property, namely a total of $16,760,014, by engaging in transactions to transfer the said funds from New South Wales to foreign accounts, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	One year and 9 months’ imprisonment (after a discount of 40% from a starting point of three years’ imprisonment)
Sequence 7	s. 193C(1) Crimes act 1900 (NSW)	Imprisonment for five years	Between 1 June 2018 and 30 June 2018, at Sydney in the State of New South Wales, did deal with property, namely a total of $12,281,437, by engaging in transactions to transfer the said funds from New South Wales to foreign accounts, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	One year and nine months’ imprisonment (after a discount of 40% from a starting point of three years’ imprisonment)
Sequence 8	s. 193C(1) Crimes Act 1900 (NSW)	Imprisonment for five years	Between 2 July 2018 and 19 September 2018, at Sydney in the State of New South Wales, did deal with property, namely a total of $33,984,960, by engaging in transactions to transfer the said funds from bank accounts in New South Wales to foreign accounts, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	One year and nine months’ imprisonment (after a discount of 40% from a starting point of three years’ imprisonment)
Sequence 9	s. 193C(1) Crimes Act 1900 (NSW)	Imprisonment for five years	Between 2 October 2018 and 31 January 2019, at Sydney in the State of New South Wales, did deal with property, namely a total of $15,421,861, by engaging in transactions to transfer the said funds from New South Wales to foreign accounts, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	Taking into account on a Form 1 the offence in Sequence 14, two years’ imprisonment (after a discount of 40% from a starting point of three years and four months’ imprisonment)
Sequence 10	s. 193C(1) Crimes Act 1900 (NSW)	Imprisonment for five years	Between 11 February 2019 and 29 April 2019, at Sydney in the State of New South Wales, did deal with property, namely a total of $18,391,042, by engaging in transactions to transfer the said funds from New South Wales to foreign accounts, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	Taking into account on a Form 1 the offence in Sequence 11, two years’ imprisonment (after a discount of 40% from a starting point of three years and four months’ imprisonment)

9. In passing sentence for the offences in Sequences 9 and 10, the Respondent requested the Court to take into account, under s.32 Crimes (Sentencing Procedure) Act 1999 (NSW), the following Form 1 offences:

Seq No	Offence Details	Maximum Penalty	Description of Offence	Indicative Sentence
Sequence 14	s.93T(1) Crimes Act 1900 (NSW)	Imprisonment for five years (if prosecuted separately)	Between 1 January 2018 and 11 July 2019, at Guildford in the State of New South Wales, did participate in a criminal group, knowing that he was participating in a criminal group and knowing that his participation in that group contributed to the occurrence of a criminal activity.	Taken into account on sentence for Sequence 10
Sequence 11	s.193(C)(I) Crimes Act 1900 (NSW)	Imprisonment for five years (if prosecuted separately)	Between 6 May 2019 and 9 July 2019, at Sydney in the State of New South Wales, did deal with property, namely a total of $1,408, 190, by engaging in transactions to withdraw the said funds from bank accounts, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	Taken into account on sentence for Sequence 10

10. The following table provides details of the offence under s.400.9(1) Criminal Code (Cth) for which the Respondent was sentenced:

Seq No	Offence Details	Maximum Penalty	Description of Offence	Indicative Sentence
Sequence 13	s.400.9(1) Crimes Act 1900 (NSW)	Imprisonment for three years	On 28 March 2019, in Melbourne in the State of Victoria, did deal with money, namely $590,970, by facilitating the receipt of the said funds by Bipin Thapa, in circumstances where there were reasonable grounds to suspect that the funds were the proceeds of crime.	12 months’ imprisonment (after a discount of 40% from a starting point of one year and nine months’ imprisonment) to commence on 11 July 2021 and expire on 10 July 2022, with a direction that the Respondent be released on 10 March 2022 by way of recognizance release order under s.20(1)(b)(i) Crimes Act 1914 (Cth), in the sum of $1,000.00 without security deposit, to be of good behaviour for a period of eight months

11. In nominating each of the indicative sentences for the State offences and in passing sentence for the offence under the Criminal Code (Cth), the sentencing Judge applied a combined sentencing discount of 40%, being 25% for the Respondent’s early guilty pleas and a further discount of 15% for past and future assistance to the authorities.

Grounds of Appeal

12. The Crown filed a Notice of Appeal on 19 November 2021 which contained a single ground of appeal asserting that the aggregate sentence pronounced was manifestly inadequate.

13. An Amended Notice of Appeal was filed on 17 January 2022 which notified the following grounds of appeal:

• Ground 1 — His Honour erred by failing to assess individually the objective seriousness of each offence under s.193C(1) Crimes Act 1900 (NSW).

• Ground 2 — The sentence imposed is manifestly inadequate.

14. Prompt notice was given to the Respondent of the Crown appeal and no issue was taken by the Respondent, in that respect, before this Court.

Facts of Offences

15. A lengthy Statement of Agreed Facts was tendered at the sentencing hearing. The following summary of the Statement of Agreed Facts is drawn substantially from the Crown submissions in this Court which accurately set out the facts of the offences.

Background

16. The Respondent was born in India and came to Australia in 2010 on a student visa. He undertook studies in Australia and, in due course, obtained a security licence. The sentencing Judge found that the Respondent was then providing legitimate security services to larger security companies by way of subcontracting.

17. As at 2015, the Respondent (then aged 27 years) operated a security business in Sydney. He entered into an arrangement with John Zeitoune, director of Asset Group Solutions Pty Ltd, whereby the Respondent provided fictitious invoices to Mr Zeitoune, in return for a commission.

18. In 2016, the Respondent and his wife, Person A, registered a number of new companies, and began operating a security and cleaning services business at Guildford. The Respondent had met his wife in 2015. They married in 2016.

19. In November 2017, the Respondent was introduced to the co-offender Firas El-Kotob (“El-Kotob”) (aka Simon Yacoub) at Mr Zeitoune’s office.

20. On or about 18 January 2018, the Respondent and El-Kotob formed a joint criminal enterprise. As part of the joint criminal enterprise, the Respondent agreed to collect from El-Kotob large sums of cash which were reasonably suspected of being the proceeds of crime, to process those funds through the business accounts of the Respondent and his wife so as to give them an appearance of legitimacy, and to transfer them to accounts in the People’s Republic of China (“PRC”), disguised as payments for commercial imports.

The Money Launderinq Offences

21. Pursuant to the joint criminal enterprise, in the period 18 January 2018 to 29 April2019, the Respondent collected more than $100 million from El-Kotob and persons nominated by him. These funds are described in the Statement of Agreed Facts as “illegitimate”. The Respondent, with the assistance of Person A and others referred to below, counted the funds, deposited them into corporate bank accounts, moved them between various Australian bank accounts, and transferred them to accounts in the PRC using a number of remittance agencies. Several corporate entities and bank accounts were used during the life of the enterprise.

22. The s.193C(1) charges relating to these funds (Sequences 5-10) included a total of 483 transfers, the vast majority of them being international transfers to bank accounts in the PRC. As mentioned later, the Respondent also pleaded guilty to a s.192E charge (Sequence 4). A further s.193C(1) charge and a s.931(1) charge were placed on a Form 1 (Sequences 11 and 14).

23. The Respondent and El-Kotob played the central roles in the joint criminal enterprise pertaining to the S.193C offences. As will be seen, the sentencing Judge found that the Respondent was an “invaluable facilitator” who provided “essential services” and was “at the centre” of the joint criminal enterprise. His Honour concluded that the Respondent was subordinate to El-Kotob, whom he described as the principal.

24. The Respondent introduced Person A to El-Kotob on 18 January 2018, and she became a member of the joint criminal enterprise at that point. Over time, a number of others joined the enterprise, including Nitin Kapila and Manminder Singh, as well as the Respondent’s employee.

The Period January to September 2018

25. In the period January to September 2018, the Respondent collected, deposited and transferred to the PRC a total of $66,536,536.00 (Sequences 5,6, 7 and 8). In this period, the Respondent used bank accounts associated with his and Person A’s companies for the purposes of the enterprise. The Respondent also set up an account with the money remittance agency Money Chain Foreign Exchange Limited (“MCFE”). This was done following an indication by El-Kotob that they would use MCFE to “move” $300,000.00 per day. The vast majority of the transfers in this period were carried out via MCFE, with a smaller number of transfers being completed through Global Trade Money Exchange.

26. The Statement of Agreed Facts sets out the processes utilised by the Respondent and El-Kotob to deal with the moneys reasonably suspected of being the proceeds of crime during the January to September 2018 period. In summary:

1. El-Kotob and the Respondent maintained daily telephone communication and arranged collections of cash in a number of different locations;

2. the Respondent collected the cash and deposited it into his and Person A’s corporate bank accounts; he then transferred the funds between various accounts so as to give them an appearance of legitimacy;

3. El-Kotob provided the Respondent instructions as to the bank accounts in the PRC to which the funds should be transferred, and the amounts (or maximum amounts) to be transferred to each account;

4. the Respondent maintained ongoing communication with an MCFE employee to negotiate daily exchange rates between the Australian dollar and the Chinese Yen, and to confirm the transfers; throughout these communications, the Respondent kept MCFE staff under the false impression that the transfers were legitimate payments for goods being imported from the PRC by his businesses, in circumstances where no goods were in fact being imported;

1. the Respondent effected electronic transfers of funds to MCFE; at the same time, he sent MCFE instructions concerning the PRC accounts to which the funds were to be transferred, and the amounts to be transferred to each account;

2. the Respondent received transfer receipts from MCFE - there were two sets of receipts with each transfer: a “primary” receipt, which set out the amount received by MCFE and the transfer instructions and an “intermediate receipt”, which confirmed that the transfer had been effected to the nominated account in the PRC;

3. the Respondent sent the primary and intermediate receipts to El-Kotob, who then checked that the funds had been received in the relevant accounts in the PRC, and informed the Respondent accordingly;

4. the Respondent and El-Kotob maintained a running balance, which recorded, amongst other things, funds collected and held by the Respondent, funds transferred to the PRC, and a commission charged by the Respondent for his services; during the period January to September 2018, the Respondent received a commission of 1% of the value of all funds collected (that is approximately $665,365.00);

27. Mr Kapila became involved in the enterprise in June 2018 (Sequence 7). He assisted the Respondent with the collections and processing of the funds. The Respondent paid Mr Kapila for his assistance.

28. In September 2018, the Australian banks closed down a number of corporate bank accounts which the Respondent and Person A had been using to deposit and process the funds received from El-Kotob. In the same period, MCFE withdrew its services due to a money laundering investigation.

The Period October 2018 to April 2019

29. In October 2018, the Respondent, Mr Kapila and Mr Singh agreed to set up new companies in Mr Singh’s name in order to enable the joint criminal enterprise to continue. The Respondent and Mr Kapila then met with El-Kotob who agreed to pay a 2% commission for all future transfers. The Respondent registered three companies with Mr Singh as the sole director and shareholder. Several bank accounts were then opened in the names of these companies. Mr Singh is a foreign citizen who was temporarily resident in Australia.

30. The Respondent, Mr Kapila and Mr Singh attempted to resume business with MCFE, however MCFE declined to provide any further services to them. A new account was then opened with Global Trade Money Exchange. The Respondent, who had had prior dealings with this agency, concealed his involvement from its staff.

31. Between 1 October 2018 and 31 January 2019, the Respondent, with the assistance of Mr Kapila and Mr Singh, collected from El-Kotob and transferred to overseas accounts a total of $15,421,861.00 (Sequence 9). The vast majority of the funds were transferred to the PRC using Mr Singh’s companies and the newly established Global Trade Money Exchange account.

32. During the October 2018 to January 2019 period, El-Kotob and the Respondent continued to perform the central roles in the enterprise and conducted their business in the same manner as that described above. The Respondent continued to misrepresent to money remitters that the funds being transferred to the PRC accounts were legitimate payments for imports.

33. The Respondent demonstrated initiative during this period in order to advance the joint criminal enterprise, including by booking exchange rates with money remitters and requesting funds to be supplied by El-Kotob.

34. By February 2019, the Respondent scaled back his cooperation with Mr Singh, and registered two new companies in the name of Binod Acharya. Mr Acharya was a temporary resident who had approached the Respondent in 2018 in response to a job advertisement.

35. By February 2019, Mr Acharya no longer had a visa to remain in Australia and agreed to assist the Respondent in return for a commission. A meeting took place between the Respondent, El-Kotob and Mr Acharya to agree on the registration of the new companies.

36. At this point, Bipin Thapa, who had been working for the Respondent and Person A as an accounts manager, became involved in the enterprise. He assisted the Respondent to open a number of bank accounts in the names of Mr Acharya’s companies. Accounts were also opened with Global Trade Money Exchange and other money remittance agencies. Whilst Mr Thapa dealt with these agencies and the banks, he was directed in these activities by the Respondent.

37. In April 2019, two new companies were registered in the name of Arjun Kumar Pun, another temporary resident. Corporate bank accounts were opened in the names of these companies. The Respondent paid Mr Pun for the use of his name and identity.

38. In the period 11 February to 29 April 2019, the Respondent received from El-Kotob and transferred to bank accounts in the PRC a total of $18,391,042.00 (Sequence 10). The majority of the funds were processed through Mr Acharya’s companies and bank accounts. Mr Pun’s accounts were also used.

39. During this period, the Respondent and El-Kotob continued to deal with the funds reasonably suspected of being the proceeds of crime in the manner outlined above. They continued to perform the central roles in the enterprise. Mr Thapa assisted the Respondent with cash collections.

40. The Respondent again demonstrated initiative during this period to advance the joint criminal enterprise. For example, on 15 April 2019, the Respondent sent El-Kotob a voice message asking, “What’s going on brother, the business is very slow”. On some occasions, the Respondent also sourced cash from his own contacts for the purposes of the joint criminal enterprise and coordinated dealings with those funds with El-Kotob.

41. As part of the joint criminal enterprise, on 28 March 2019, the Respondent and El-Kotob arrange a collection of $590,970.00 in Melbourne (Sequence 13— the s.400.9(1) Criminal Code (Cth) offence). The funds were collected by Mr Thapa and deposited into an account associated with Mr Acharya. The Respondent charged El-Kotob for the cost of Mr Thapa’s flights and accommodation in Melbourne. When El-Kotob protested, the Respondent reminded him that El-Kotob had promised to cover these costs, and El-Kotob agreed to pay.

Total Funds Transferred Between January 2018 and April 2019 — s.193C(1) Offences

42. The combined total of funds collected, processed and transferred to the PRC by the Respondent during the period January 2018 to April 2019 (Sequences 5-10) was $100,349,439.00.

Events Following Arrest of El-Kotob on 29 April 2019

43. El-Kotob was arrested on unrelated charges on 29 April 2019. At that time, the Respondent held large amounts of funds in accounts associated with Mr Acharya and Mr Pun. Those funds had been supplied by El-Kotob, but had not yet been transferred to the PRC.

44. From 6 May to 9 July 2019, the Respondent and Mr Thapa withdrew a total of $1,408,190.00 and provided those funds to persons nominated by El-Kotob. These dealings formed the basis of Sequence 11, which was dealt with on a Form 1 on sentence for Sequence 10.

The Attempted Fraud Offence under s.192E Crimes Act 1900 (NSW) — Sequence 4

45. Separately from the above dealings with El-Kotob, the Respondent was involved in an attempt to obtain by deception an amount of $2,500,000.00 from the Commonwealth Bank of Australia (“CBA”).

46. In August 2018, the Respondent agreed to assist an associate, Gary Mehta, to transfer $2,500,000.00 from Singapore, and to deliver the funds to Melbourne. The Respondent was to be paid a 2% commission.

47. The Respondent told Mr Kapila about the agreement, and Mr Kapila agreed to assist in return for a 4% commission. It was agreed that a CBA account in the name of Mr Kapila’s father, Satish Kapila, would be used to facilitate the transfer.

48. The Respondent provided the details of Satish Kapila’s CBA account to Mr Mehta on 19 September 2018. Subsequent to this, an employee of Banner Asset Management, a Melbourne-based investment firm, was misled into believing that Satish Kapila’s account was in fact an account with that firm. This led to a transfer of $2,500,000.00 from Singapore into the account of Satish Kapila. Satish Kapila was based in India and was unaware of these activities.

49. There is no evidence that the Respondent was involved in the deception upon Banner Asset Management. However, he became aware that the transfer into Satish Kapila’s CBA account was the result of fraudulent activity, prior to attempting (with Mr Kapila) to have the funds released from the CBA.

50. On 31 October 2018, Nitin Kapila spoke to the CBA, posing as Satish Kapila. CBA staff informed him that the Bank had placed a hold on the transfer. Mr Kapila stated that the transfer of $2,500,000.00 represented a return on his overseas investment. The CBA staff provided Mr Kapila with an email address to which documents could be sent to confirm ownership of the funds.

51. Later that evening, there was an exchange of messages between the Respondent and Mr Mehta:

1. the Respondent provided Satish Kapila’s email address to Mr Mehta (this email was recorded on the CBA account); and

2. Mr Mehta provided to the Respondent the details of the originating Singapore account and a copy of an email from a Singapore-based investment advisor indicating that the funds should arrive within one day.

52. Mr Kapila again spoke to CBA staff on 1 November 2018 and told them that his business partner in Singapore had informed him that the funds had been transferred. Mr Kapila said that he intended to use the $2,500,000.00 to purchase shares in a company called Australian Development Group.

53. The Respondent was a director of Australian Development Group Holdings Pty Limited (“ADGH”). On 2 November 2018, Mr Kapila arranged for Satish Kapila to sign the signature page of a contract for the supposed sale of 50% of shares in ADGH to Satish Kapila. The price payable for the shares was $2,500,000.00. The Respondent signed the contract after Satish Kapila had signed the contract.

54. This contract was submitted to the CBA on 5 November 2018. On 6 November 2018, Mr Kapila made further enquiries with the Bank. He was told that the documentation which had been submitted was insufficient to authorise the release of the funds.

Arrest of the Respondent on 11 July2019

55. On 11 July 2019, police arrested the Respondent and Mr Thapa at their offices at Guildford. Person A was arrested at home on that day.

56. Search warrants were executed at various premises and revealed a range of documents and other relevant records.

57. The Respondent participated in an electronic interview with police on 11 July 2019 in which he declined to answer most questions. When allegations of money laundering were put to him on the basis of material collected in the police investigation, the Respondent said “I’m not even a small fish in the pond for that”.

58. In subsequent investigations, Mr Kapila was arrested on 19 July 2019 and Mr Singh was arrested on 25 July 2019.

59. The Respondent has remained in custody continuously following his arrest on 11 July2019.

The Sentencing Hearing and Remarks on Sentence

60. The sentencing hearing took place before his Honour Judge Craigie SC on 24 August 2021. A substantial volume of documentary material was tendered by the Crown and by the defence including a report of Sam Borenstein, psychologist, dated 22 July 2021.

61. The Respondent had a limited criminal history. In October 2014, he committed two Commonwealth offences of making a false statement with two further offences charged as keeping an incorrect record to mislead a tax officer. In October 2016, the Respondent was convicted of these offences and fined a total of $3,800.00 for those offences.

62. Oral evidence was given by Detective Senior Constable Gareth Michael with respect to the Respondent’s assistance to law enforcement authorities (T12-19, 24 August 2021). A document outlining the Respondent’s assistance was tendered on a confidential basis (Exhibit B) and, in accordance with usual practice, placed in a sealed envelope.

63. In evidence, Detective Senior Constable Michael expressed the view that, from his many hours of discussions with the Respondent, the Respondent appeared to be genuinely remorseful for his offences (T14, 24 August 2021). He considered that the Respondent had been truthful (T16). Detective Senior Constable Michael confirmed that the Respondent had been the victim of several assaults in custody and had been housed in the Special Purpose Centre at Long Bay Correctional Centre (T17-18). He agreed in cross-examination that the Respondent’s assistance overall was at “the highest possible level” (TI 9).

64. Written submissions on sentence were furnished to the sentencing Judge in advance of the hearing on behalf of the Crown and the Respondent and counsel addressed on the question of sentence. At the conclusion of the sentencing hearing on 24 August 2021, the sentencing Judge adjourned the proceedings for sentence on 22 October 2021.

65. Having regard to issues raised on appeal, it is appropriate to refer to parts of the detailed sentencing remarks delivered on 22 October 2021.

66. Early in the sentencing remarks, his Honour made general observations with respect to the offences and the 25% discount to be applied for the Respondent’s guilty pleas.

67. His Honour said with respect to the six offences under s.193C(1) Crimes Act 1900 (NSW) (ROS4):

“The six counts in sequence 5, 6, 7, 8, 9 and 10 are each separate instances of conduct in a continuing course of offending. In each instance the nominated count relates to the offender’s dealing with property, being Australian currency, in circumstances where there were reasonable grounds to suspect that the subject funds were the proceeds of crime. The monetary value indicated in each substantive count is the outcome of multiple acts constituting the count only and reflecting dealings over a particular date range concerning that count.”

68. His Honour then referred to the very detailed Statement of Agreed Facts, in the course of which he observed (ROS8):

“The offender’s further criminal conduct with El Kotob deepened over a period of some eighteen months by a frequency of dealing with very large, individual and resultant massive aggregate sums of objectively suspect cash. The offender in his role actively assisted El Kotob and his dealings with different parties, including with the other co-accused who presently await trial with El Kotob. One of those persons also involved was the offender’s wife.”

69. After summarising the facts of the s.193C(1) offences, his Honour referred to the Commonwealth money laundering offence (ROSI6):

“As I have noted, reflective of this activity is a predominance of State offences. However, sequence 13 is an offence prosecuted pursuant to s 400.9(1) of the Commonwealth Criminal Code Act 1995. It relates to conduct that I am nonetheless satisfied would have been charged in identical terms to the other money laundering accounts, had the related conduct occurred in New South Wales. In the particular instance, the offending was in conduct whereby on 28 March 2019 the offender facilitated the receipt in Melbourne of some $590,000. They were objectively tainted funds that came into the possession of Bipin Thapa as part of the joint criminal enterprise activities.

That activity, as / have noted, given the offence provisions, represents a Tier 3 offence in the Commonwealth provisions, for which the maximum penalty is three years’ imprisonment.”

70. The sentencing Judge turned to the objective seriousness of the money laundering offences (ROS17-19):

“In relation to the objective offending in each case where the instances of money laundering-related conduct, as the Crown’s submissions reflect, the conduct facilitated clandestine movements of cash at an enormous scale. Apart from the simple fact of the massive monetary totals involved, the offender’s actions involved numerous occasions where he made multiple transactions, employed his access to accounts controlled by or accessible to him to move funds. This was in order to facilitate the transfer of funds as to which there were objectively reasonable grounds to suspect that the funds were the proceeds of crime.

In that regard, however, it is important to note that the elements of neither the predominant State offences nor the single Commonwealth offence require any actual knowledge on the part of the offender that the funds were indeed tainted; see R v Ansari [2007] 70 NSWLR 89 in particular at paras 119 to 121. In that regard the Court must be mindful to avoid an error of the kind identified by the Court in Shi v The Queen [2014] NSWCCA 276 where the sentencing judge had in error made a finding that the applicant had known that the funds with which he dealt were the proceeds of crime. To so find is both unnecessary to proof of the offence, and also in breach of the principles enunciated by the High Court in The Queen v De Simoni (1981) 147 CLR 383, amounting as it does to a finding of a more serious offence, as would particularly be the case in the Tier 3 Commonwealth offence. but also as would touch the State counts.

The Court is mindful that the public policy focus that is reflected in the offence provisions of both the State and Commonwealth offences is upon the clandestine nature of the dealings with funds and the benefit that this affords particular elements in society by obscuring a wide range of often organised criminal activity.

In addressing the objective offending in money laundering-related counts, both State and Commonwealth, I have been assisted by the submissions of Senior Counsel for the offender who submitted that the Court should be mindful in the State offences that the notion of the proceeds of crime entailed that of property ‘substantially derived or realised’ from a serious offence, pursuant to s 193A. Accordingly, the Court must be mindful that funds can be a mix of both illegally obtained money and legitimately earned money.

Insofar as there are reasonable grounds to suspect money has been the proceeds of a particular activity, there is nothing in the present facts to support a conclusion of a specifically identified activity such as would require an increase in the assessed Seriousness of the offending. The Court was reminded that there is, however, mention in the facts that most funds were collected from a business run by particular associates of El Kotob. That is to be found at paras 30 and also 108 of the agreed facts. The Court was reminded that there was no basis to infer, as opposed to impermissibly suspect, that the source of the funds related to offending at the more serious end of the wide range of possible sources as in particular was referred to by Howie J in Ansari.”

71. In the course of reciting submissions made on sentence, his Honour recorded the following findings (ROS21-22) (emphasis added):

“I uphold the following points as noted in submissions on the offender’s behalf, as otherwise indicative of the relative positions of the offender and El Kotob in the joint criminal enterprise.

They were:

(a) that El Kotob had contacts and relationships with the third parties who sought to have large sums of suspect money placed in Australian bank accounts and then transferred overseas; see the agreed facts at 15(a);

(b) that the available evidence, including that in the lawfully intercepted communications, reflected the offender almost in variably followed detailed instructions of El Kotob as included arrangements for the offender to collect the funds and in instructions to the offender as to the specified amounts to be transferred and to which specific Chinese accounts they were to be credited; also agreed facts at 15(a).

I uphold the submissions on behalf of the offender that his conduct was less sophisticated than that of El Kotob. Senior counsel, however, also used the additional description of the offender as being ‘naive’. I am not comfortable with accepting that particular description insofar as it might imply a level of ignorance of the scale and implications of a plainly unlawful undertaking of an extraordinary kind. I otherwise uphold the submission to the effect that there was a marked difference between El Kotob’s evident managerial efficiency and it exists in a pre-existing role, and his risk awareness, as opposed to the low level of risk awareness apparent in the offender. That level, however, did no doubt with growing anxiety develop in particular as matters progressed towards the latter part of the 18 months of involvement.”

72. Soon after, his Honour drew together findings with respect to the objective seriousness of the money laundering offences (R0S23-26) (emphasis added):

“In terms of general principles applicable to assessing the objective offending of those who are involved in money laundering conduct / note, as has been submitted and is accepted by both parties, that it is well established in authority that an offender’s state of knowledge as to the source of the relevant property and its value of the relevant property are significant factors to be assessed in the objective offending. That applies to both the related Commonwealth and State offence regimes. In those considerations of course the predominant feature is that of the offender’s awareness of both the individual and aggregating sums involved.

On the offender’s behalf the Court has been reminded in submissions that as with other offences of facilitating or participating in a joint criminal enterprise the key consideration remains that of the actual contribution by the offender. What is clear from the facts is that the funds in total were quite massive. That is a matter, whatever the offender’s role, that cannot be overlooked.

That said, the Court is mindful that the Commonwealth offence as a Tier 3 offence, in a statutory scheme in which a Tier I offence carries 25 years, has a particular level that characterises it. The difficulty for the offender, however, is the huge scale and number of transactions. One is also mindful of the State offences and the requisite mental element which aligns I find the conduct both in those State offences and the Commonwealth offending. I am also mindful of in terms of proportion a significant variation in the maximum penalty as between the State and Commonwealth offending.

I have been guided by reference to statements of general principle in Van Haltren v The Queen [2008] NSWCCA 274, also reported at 191 ACR 53 at p 79. Those principles in particular are to be found at para 81. Relevant factors to be considered are the offender’s place in any criminal hierarchy.

In that respect I have found the offender was not the principal offender, although he was indeed an invaluable facilitator. I identify the principal offender as El Kotob.

I have otherwise found the offender was an essential facilitator in the joint criminal enterprise, operating at a high executive level, albeit at the direction, including on a day-to-day basis, from El Kotob. I find that the offender was not a recipient of reward proportionate to that intended for others, in particular principals working at the level of El Kotob or above. The offender, however, provided in his work for the joint criminal enterprise an ongoing source of benefit and reward for those persons by way of his services.

I have otherwise found no evidence of massive wealth proportionate to the funds involved were accrued by the offender. I do find that the offender had others working with and under him. That involvement of others is an aggravating feature. As / have noted, however, the offender continued himself working at a high level of risk disproportionate to the rewards for the services he provided.

In the case of the offender he is distinguishable from El Kotob who plainly had pre-existing contacts for whom he wished to place tainted funds in Australian bank accounts. Although essentially working on a day-to-day basis as a facilitator one feature of the offending Is that there is evidence that the offender did retain some discretion as to the way in which he implemented.

El Kotob’s requirements. That said, / find that he predominantly worked to the detailed and accompanying instruction of El Kotob in most, if not every, step. Upon careful consideration of all those matters as to the offender’s role I do accept the description of the offender in submissions as that of a subordinate to El Kotob.

I also have regard to the facts as revealing that, rather having agreed to engage in a wide ranging and open-ended scale of offending with El Kotob from the outset, the offender’s initial involvement had been in his aqreement to be involved in a single transaction. Furthermore, as indicated in the induced statement at para 55:

‘Upon agreeing to assist El Kotob with the initial transaction, the offender had an outstanding $50,000 loan that he was seeking to pay back, and this became a motivating factor for him to be involved.’

I accept that the offender acknowledges that over time, his desire to make money was a motivating feature. That is not to his credit. In the period up to the end of September 2018, the arrangement had been for him to receive 1% commission for his involvement in each of the transactions. It should also, however, be borne in mind that he was paying Kapila the sum of $2,000 to $2,500 per week See para 32 of the agreed facts. In September 2018, the commission to be received by the offender was less than 1%, as he was sharing a 2% commission with two other co-offenders.

However, I accept submissions made on his behalf that other factors were also relevant to his preparedness to remain involved in the enterprise over time in the setting of that as he indicates in the induced statements; he was becoming increasingly anxious and reluctant in his involvement. / accept that the offender more probably than not had experienced a degree of ongoing pressure from El Kotob that he remain involved notwithstanding that he had doubts as to whether he should indeed do so.

Those are the considerations touching my assessment of the objective criminality in the money laundering-related offences.”

73. His Honour then turned to consider the offence of attempted fraud under s.192E(1)(b) Crimes Act 1900 (NSW) (R0S26-28) (emphasis added):

“I turn now to the single but also inherently serious matter that has been prosecuted pursuant to s 192E(1)(b). Apart from the factual predominance of the multiple money laundering-related offending, this offence requires proper attention. The offence in sequence 4 is a substantive count of a somewhat different kind. It is also one that attracts a significantly higher primary indication of inherent seriousness in the maximum penalty of ten years’ imprisonment.

…

Although this particular episode of offending rose out of related criminal associations connected to the other offences, I approach sequence 4 as an offence standing in a somewhat different category to the money laundering counts. I also however must take account of the implications of the higher maximum penalty for the attempted fraud offence. I find the offender’s conduct in that instance may be properly summarised as a further instance where he acted as a facilitator, in this case to those who were attempting a serious crime. It was at a lower level of connection than that that represented his relationship with El Kotob.

It is also of some significance that this offending was some six months into the 18 months of extended criminal activity that related to El Kotob, who is a person not involved in the attempted fraud activity. The common feature however is that this was a further example of criminal associates relying upon the offender’s familiarity with certain procedures. It is otherwise distinguishable as an offence that did not in any way involve El Kotob. It also did not have the present offender as the most prominent, hands-on, day-to-day perpetrator. That role was more actively fulfilled by Kapila.”

74. The sentencing Judge then turned to matters concerning the Respondent including his assistance to law enforcement authorities and the necessity for the Court to have regard to s.23 Crimes (Sentencing Procedure) Act 1999 (NSW) and ss.16A(2)(h) and 16AC Crimes Act 1914 (Cth). In this respect, his Honour noted the requirement that any discount for assistance should not be unreasonably disproportionate to the nature and circumstances of the offences: s.23(3) Crimes (Sentencing Procedure) Act 1999 (NSW).

75. His Honour stated that he had carefully considered the Respondent’s induced statement which was “of a particularly extensive kind” which “detailed the complexities of the joint criminal enterprise” and “reveals the extent of involvement by the co-accused awaiting trial” (ROS31). His Honour made positive findings concerning the content of the Respondent’s induced statement and its value to law enforcement authorities including with respect to the pending trials of the co-accused (R0S32-33).

76. His Honour made the following findings (R0S33) (emphasis added):

“I find that the level of assistance is, as has been submitted on the offender’s behalf, of a particularly high level. I have also considered what I am satisfied is a reflectively high level of hardship that the offender has experienced in custody.

I find that has been directly related to the assistance that he has given to authorities in the circumstances that require his being held in much more difficult conditions than might otherwise be the case. In addition to the factors inherent in the fact of his assistance, the offender has relied upon substantial evidence of his personal circumstances in subjective material tendered. This includes two letters to the Court and a psychologist’s report commissioned on behalf of those representing the offender and Justice Health records.”

77. His Honour then assessed various features of the Respondent’s subjective case and made the following finding with respect to extra-curial punishment (R0S35) (emphasis added):

“An important feature of the material presented on behalf of the offender has been described in terms analogous to that sometimes described as a factor of extra-curial punishment. It is well-established in authority that where as a result of their custodial situation an offender has suffered some loss or detriment over and above that which is necessarily entailed in a loss of liberty, it may amount to a factor taken into account by the sentencing court.

That is not limited to extra punishment per Se, as classically exampled in R v Daetz [2003] or indeed in P v Wilson [2003].

I find that the offender’s position as a person who has been repeatedly threatened, seriously assaulted to the extent of requiring hospitalisation and who remains, I accept, terrified by the prison environment as a result is a matter of potent importance. I take that into account. I accept that the offender has provided an account that is consistent also with material available in prison medical records.”

78. His Honour found that the Respondent was subject to “a high level of psychological distress”, arising from threats and demands for money made by other inmates in custody, and made the following finding (R0S36):

“The offender’s experiences, and as reflected in the documentation, I find are more than sufficient to justify assessment as either extra-curial punishment or a factor of hardship that runs parallel to such a description. Those factors also, I find in this instance, bear upon a reduction on the need for personal deterrence. They do however seem somewhat distinct from a submission made on the offender’s part that I should activate the principles in R v De La Rosa [2010] in terms of a finding sought that his psychological state impacted upon his functioning at the time of the offending such as reduced his moral culpability.”

79. After considering other aspects of the Respondent’s subjective case, his Honour said (ROS 37-38) (emphasis added):

“I also give some weight to what I accept upon the content of the induced statement was some anxiety in the offender that rose with his continued involvement in the offending and more particularly with El Kotob. That anxiety, and other aspects of the diagnosis of Mr Borenstein, I have no doubt was increased when in custody. The offender’s vulnerability was emphasised by events, including the assaults and threats that he has sustained. The offender has manifested signs of being suicidal. It is no exaggeration to say that his time in prison has not merely been difficult, but miserable.

That said, the state of the evidence does not persuade me that the offender was, when engaged in the offending conduct, in such a state of compromised cognition that achieved a degree requiring that his moral culpability for the role that he did play should be reduced. In that regard, I have considered, for instance, the assertions made that his state was such that he was operating ‘in a robotic fashion’ and I am unable to accept that, alongside what was plainly a continued and deliberate course of offending in actions of some complexity. Moreover, I have had regard to some of the available recorded interactions with co-offenders, which certainly are not consistent with the offender acting as asserted, ‘in a robotic fashion’. Those matters relate to the offender’s state at the time of the offending. They stand in contrast to the much stronger position presented, in particular with reference to both the psychological report and the consistency of report and observation, including of objective signs in the Justice Health material.

The notes made of the offender’s reports of being threatened are compelling. There is a ring of truth in the account where, for instance, when plainly deeply depressed, he recounted that he was in fear, being threatened with being stabbed, and being aware that messages were being passed around wings at the jail that he was to be assaulted in order to obtain money from him. That, and the general setting of oppression sustained by the offender is such that I accept that at various stages, he has indeed reached a state of despair where he has contemplated taking his own life.

I have found that the offender has, in particular during his imprisonment, come to a high state of awareness of his having support by way of participation of deeply criminal activity. I find that he is contrite and note the evidence consistent with that assessment given by the officer who has spent some time with him in the preparation of the induced statement.”

80. His Honour made further findings with respect to the Respondent’s subjective circumstances and then concluded (R0S39-40) (emphasis added):

“They, in combination most prominently with the induced statement, argue strongly both for a reduction of a substantial level in the head sentence and a reflected finding of special circumstances both for that reason and in liqht of the hardship suffered. / have noted, in relation to the offender’s antecedents, that whilst not being entitled to a finding that he has no criminal record, his offending history, although in some ways relevant, is indeed limited. More importantly, the present matters represent his first, and very plainly arduous, experience of custody

I accept that the offender has demonstrated remorse for his conduct.

…

That remorse, however, is most compellingly demonstrated by the completeness of the level of assistance to authorities. I found both remorse and insight in the offender to be at a high level”

81. His Honour expressed the following conclusions before moving to pass sentence (ROS4O-42) (emphasis added):

“Upon consideration of the factors in s3A as to the purposes of sentencing, noting a general consistency of those provisions with s 16A of the Commonwealth Crimes Act 1914. I have approached the sentencing exercise, noting it is both complex and demanding of care, in order to reflect a proportionate response to very serious offending. The offending took place over some 18 months. There is a close relationship between all of the offending, including the attempted fraud.

In approaching assessment of those matters, I have had regard to the principles relating to money laundering, including the high significance of the amount of money. I have had regard; both in terms of the required Commonwealth considerations specified and as inherent in the assessment of objective seriousness of the State offences to the nature, extent and duration of the dealings in the money, which was complex and did require some deliberation and skill. I note that this was, not only by this offender, but by others with whom he was engaged, some of them by way of their employment with the offender.

I have found the offender’s role in the joint criminal enterprise was crucial and that there was a high degree, on a continuing basis, of planning and system involved in the money laundering-related offences, particularly. That offending is obviously the predominant feature of activities over some 18 months. It involved assistance of a valuable kind to facilitate serious criminal activity.

The attempted fraud falls into a somewhat different category. But there too, the amount of money was very large. In addition to having regard to the matters outlined in s 16A of the Commonwealth Crimes Act, I have had regard to the purposes of sentencing as laid out in s 3A of the Crimes (Sentencing Procedure) Act Those matters align with principles related to the sentencing of Commonwealth offences, as the Crown has conceded.

They are to ensure that this offender is adequately punished for the offence. That consideration will be modified considerably by the factors that I have canvassed arising from the offender’s assistance, and also the hardship that he has suffered as a result. it is required, however, that the sentence retains a level of general deterrence whereby other persons may be deterred from involving themselves at any level, including facilitation of money laundering or other related crimes. There is a need to protect the community from offending of that kind. That also manifests in the instances where the community becomes vulnerable because of the technological basis for much commercial and personal banking activity.

In relation to the rehabilitation of the offender, I find given the absence of serious offending in his background and his present disposition, that he remains a person who has a considerable potential for value to the community. I find, as reflected in his present attitude and his persistence in assisting the authorities, that he reflects good prospects for rehabilitation. In fact, I would assess them as being excellent.

The offender must remain accountable for his actions. In that regard, I do not however overlook the period of imprisonment to date and the added degree of hardship entailed. That is, of course, not to overlook a matter that is experienced by all prisoners at present, being the hardships additional through restrictions entailed in response to the protection of prisoners required by reason of the pandemic. That, in the case of this offender, would be yet another layer of hardship that must be considered.”

82. His Honour allowed a 25% discount for the Respondent’s pleas of guilty and a 15% discount for the Respondent’s assistance to law enforcement authorities, assessed as 5% for past assistance and 10% for future assistance (R0S42-43). With respect to the combined discount, his Honour said (R0S43):

“The combined discount of 40% I regard, as in the ordinary course, exceptional. It is, however, applied given what I regard as the exceptional quality and value in the indicated level of further assistance.”

83. After announcing the indicative sentences and the sentences actually imposed, his Honour said (R0S44):

‘I should indicate - and I have not stated it - that I have approached each of these matters individually as to their criminality and then moved to a consideration of totality, as required pursuant to the High Court’s decision in Pearce v The Queen (1998) 194 CLR 610. I have found special circumstances by reason principally of the added hardship endured, and likely to be further endured by the offender, and by reason of it being his first experience of imprisonment.”

84. In the sentencing remarks, his Honour did not make findings of objective seriousness concerning the s.1930(1) offences by reference to the range or spectrum of gravity applicable to those offences: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [191. I will return to this issue when considering the first ground of appeal.

Ground 1 — His Honour Erred by Failing to Assess Individually the Objective Seriousness of Each of the s.193C(I) Offences

Submissions for the Crown

85. Whilst acknowledging that the appeal was directed to the aggregate sentence imposed by the sentencing Judge for the offences under s.193C(1) Crimes Act 1900 (NSW), the Crown submitted that it was open to contend that error had occurred in assessing the objective seriousness of each of these offences, with such an error affecting the aggregate sentence itself upon the basis that the error is material to the final process of determining the aggregate sentence.

86. The Crown submitted that identical indicative sentences had been stated for each of Sequences 5-8 although there were marked differences between the objective facts of each offence. It was submitted that the same indicative sentence was imposed, as well, for Sequences 9 and 10 although the Crown acknowledged that there was a lesser difference between the facts of those two offences.

87. It was submitted that the imposition of identical indicative sentences for the two subgroups of s.193C(1) matters revealed error, particularly after taking into account the significant variation in the objective seriousness of the individual offences: Subramaniam v R [2013] NSWCCA 159 at [27]-[32].

88. With respect to Sequences 5-8, the sentencing Judge took an identical starting point of three years’ imprisonment for each offence, which was discounted by 40% to produce an indicative sentence on each count of imprisonment for one year and nine months. The Crown submitted that there are significant differences between those four offences, including the number of transactions subsumed within each count, the aggregate amounts of money involved and the average amount per transaction. These features are summarised in the following table:

Sequence	Number of Individual Transfers	Total Amount	Average amount per Transaction
Sequence 5	63 transfers	$3,510,125.00	$55,716.00
Sequence 6	110 transfers	$16,760,014.00	$152,363.00
Sequence 7	32 transfers	$12,281,437.00	$383,794.00
Sequence 8	114 dealings	$33,984,960.00	$298,113.00

89. With respect to these offences, the Crown noted:

1. Sequence 8 involved a total amount which is 10 times greater than the total amount in Sequence 5;

2. Sequences 6 and 7 involved total amounts which were four times and three times greater, respectively, than the total in Sequence 5;

3. the total amount in Sequence 8 is more than twice the totals in Sequences 6 and 7; and

4. Sequences 7 and 8 involve significantly higher amounts per transaction than Sequences 5 and 6, as well as the involvement of an additional co-offender, Mr Kapila.

90. The Crown submitted that the sentencing Judge did not provide a separate analysis of the objective seriousness of Sequences 5-8. The sentencing remarks provided no reasoning as to why, despite these significant differences, his Honour adopted an identical starting point in each case. The Crown submitted that this demonstrated that his Honour adopted an impermissible “bIanket” approach and failed to undertake an individual assessment of the criminality of each sequence.

91. With respect to Sequences 9 and 10, the Crown referred to the following features of these offences:

Sequence	Number of Individual Transfers	Total Amount	Average Amount per Transfer
Sequence 9	78 transfers	$15,421,861.00	$197,716.00
Sequence 10	86 transfers	$18,391,042.00	$213,849.00

92. The Crown submitted that, whilst these two sequences were allocated a higher starting point compared to Sequences 5-8, this approach appears to be referable to the Form 1 offences attached to each of Sequences 9 and 10.

93. It was submitted that the adoption of a blanket approach to Sequences 9 and 10 revealed error in circumstances where Sequence 10 involved a significantly higher total (almost $3,000,000.00 more than Sequence 9) and where the Form 1 offence attached to Sequence 10 involved 67 further dealings in an additional total sum of $1.4 million.

94. It was submitted that the sentencing Judge had provided a chronological summary of the offences in accordance with the Statement of Agreed Facts, but the sentencing remarks did not reveal any process by which the different features applicable to the individual offences impacted upon the assessment of their objective seriousness.

95. The Crown submitted that the sentencing Judge had failed to engage in an individualised assessment of the offences, and the sentencing remarks did not indicate a process by which the different features of the offences were taken into account so as to assess their objective seriousness. Rather, it was submitted that his Honour appears to have adopted a global approach by setting an identical starting point for Sequences 5-8 and then increasing it, by an identical margin, for Sequences 9 and 10 for which Form 1 offences attach.

96. In adopting this approach, it was submitted that his Honour had failed to comply with the fundamental principle of sentencing which was preserved by s.53A Crimes (Sentencing Procedure) Act 1999 (NSW) as identified in Subramaniam v R.

Submissions for the Respondent

97. Mr Johnston SC, for the Respondent, submitted that the approach adopted by the sentencing Judge in this case was permissible in accordance with the decisions of this Court in R v Glynatsis (2013) 230 A Crim R 99; [2013] NSWCCA 131 and Shi v R [2014] NSWCCA 279 at [64]-[67].

98. It was submitted that the sentencing Judge considered properly the criminality of each of the offences and took into account the value of the relevant property and the Respondent’s awareness of the sums involved, the Respondent’s place in the hierarchy of these offences, the Respondent’s reward by way of commissions and the fact that the Respondent had other persons working under him with respect to the offences. His Honour was conscious of the need to apply the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 in considering the matters individually and the principle of totality.

99. It was said to be telling that the sentencing Judge regarded the relevant amounts involved in the individual offences as being very large in all instances. It was submitted, as well, that the suggestion that varying amounts of money involved in the offending ought necessarily attract different indicative sentences was less compelling, given the element of the s.1930(1) offences where the requirement is for the prosecution to establish objectively that there were “reasonable grounds to suspect” that the property was the proceeds of crime. That requirement does not turn on the state of mind of the Respondent in relation to the individual amounts: Yacoub v R [2021] NSWCCA 166 at [21]; Xue v R [2021] NSWCCA 270 at [296].

100. It was submitted that the present case was different from Subramaniam v R in several respects.

101. Senior Counsel for the Respondent observed, as well, that there was limited scope for variation in sentences in any event in this case given that the maximum penalty for each of the s.193C(1) offences is imprisonment for five years. In circumstances where the indicative sentences (before application of the 40% discount) for Sequences 5-8 was imprisonment for three years and for Sequences 9 and 10, imprisonment for three years and four months, there was effectively limited room to move.

102. In these circumstances, it was submitted that these indicative sentences may well have represented the maximum appropriate sentence which his Honour considered could realistically be imposed bearing in mind the fact that the Respondent’s criminality was assessed as being significantly below that of El-Kotob and the very strong subjective features to be taken into account concerning the Respondent.

103. If the Court considered that the sentencing Judge had erred in the manner complained of in Ground 1, it was submitted for the Respondent that the Crown had effectively led his Honour into error. It was submitted that the Crown submissions in the District Court did not, in any real sense, ask that his Honour differentiate between the sentences to be imposed in relation to the individual s.193C(1) offences. Rather, the Crown made general submissions in relation to the offending as a whole. Whilst the Crown written submissions refer to R v Brown [2012] NSWCCA 199 (which was referred to in Subramaniam v R) and referred to the potential for error where there is a “blanket assessment by simply indicating the same sentence fora number of offences”, the Crown submission did not differentiate between the various counts in terms of the relative seriousness of the offences.

104. Given the manner in which the Crown itself approached the issue at first instance, it was submitted that it would not be appropriate for this Court to exercise its residual discretion to intervene and resentence the Respondent even if error were to be found in accordance with Ground 1: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [92].

Decision Concerning Ground 1

105. Before turning to the particular circumstances of this case, it is appropriate to make some general observations concerning sentencing for offences under s.193C(1) Crimes Act 1900 (NSW).

106. Section 193C lies within Part 4AC (ss.193A-193G) of the Crimes Act 1900 (NSW) entitled “Money Laundering”. Part 4AC creates a hierarchy of money laundering offences.

107. Section 193B creates several offences which require a mental element on the part of the offender. Section 193B provides:

“193B Money laundering

(1)   A person who deals with proceeds of crime—

(a) knowing that it is proceeds of crime, and

(b) intending to conceal that it is proceeds of crime,

is guilty of an offence.

Maximum penalty—imprisonment for 20 years.

(2)   A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.

Maximum penalty—imprisonment for 15 years.

(3)   A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.

Maximum penalty—imprisonment for 10 years.

(4)   It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant dealt with the proceeds of crime to assist the enforcement of a law of the Commonwealth, a State or a Territory”

108. 108 Section 193C provides:

“193C Dealing with property suspected of being proceeds of crime

(1)   A person is guilty of an offence if—

(a)   the person deals with property, and

(b)   there are reasonable grounds to suspect that the property is proceeds of crime, and

(c)   at the time of the dealing, the value of the property is $100,000 or more.

Maximum penalty—Imprisonment for 5 years.

(2)   A person is guilty of an offence if—

(a)   the person deals with property, and

(b)   there are reasonable grounds to suspect that the property is proceeds of crime, and

(c)   at the time of the dealing, the value of the property is less than $100,000.

Maximum penalty—Imprisonment for 3 years.

(3)   Without limiting subsection (1) (b) or (2) (b), there are reasonable grounds to suspect that property is proceeds of crime in each of the following circumstances—

(a) in the case of subsection (1) (a)—the dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 of the Commonwealth that would otherwise apply to the transactions,

(b) the dealing involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth that would otherwise apply to the transactions,

(c)   the dealing involves using one or more accounts held with authorised deposit-taking institutions in false names,

(d) the dealing amounts to an offence against section 139, 140 or 141 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth,

(e)   the value of the property involved in the dealing is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the dealing occurs,

(f) the dealing involves a significant cash transaction (within the meaning of the Financial Transaction Reports Act 1988 of the Commonwealth) and the defendant—

(i)   has contravened the defendant’s obligations under that Act relating to reporting the transaction, or

(ii)   has given false or misleading in formation in purported compliance with those obligations,

(g) the dealing involves a threshold transaction (within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth) and the defendant—

(i)   has contravened the defendant’s obligations under that Act relating to reporting the transaction, or

(ii)   has given false or misleading information in purported compliance with those obligations,

(h)   the defendant—

(i)   has stated that the dealing was engaged in on behalf of or at the request of another person, and

(ii)   has not provided information enabling the other person to be identified and located.

(4)   It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country.”

109. The legislative history of s.193C was considered in Xue v R at [189]-[198]. Section 193C was enacted by the Confiscation of Proceeds of Crime Amendment Act 2005 (NSW).

110. The second reading speech to the Confiscation of Proceeds of Crime Amendment Act 2005 (NSW) noted that the s.193C offence was “part of a national initiative to address money laundering and organised criminal networks” and “ensure that such laws are an effective deterrent for profit motivated crime”: Xue v R at [190].

111. Section 193C was amended by the Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 (NSW), with the insertion of s.1930(3) which set out circumstances in which it is deemed that there are reasonable grounds to suspect that the property is the proceeds of crime. In taking this step, Parliament amended s.1930 to reflect s.400.9 Criminal Code (Cth).

112. When sentencing for s.193C(1) offences, it is necessary to keep in mind that the elements of the offence require “reasonable grounds to suspect that the property is proceeds of crime”: s.193C(1)(b). A person cannot be sentenced upon the basis that the person knew or was reckless as to whether the property was the proceeds of crime, with these circumstances giving rise to more serious offences under s.193B. The “reasonable grounds to suspect” element in s.1930(1) does not turn on the state of mind of the accused person: Yacoub v R at [211; Xue v R at [296].

113. It would constitute error in accordance with the principles in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 for a sentencing court to have regard to the knowledge or recklessness of the offender where those matters involve more serious offences for which the offender is not to be sentenced: Shi v R at [48]; Samarakoon v R [2018] VSCA 119 at [66]; Humphreys v R [2020] NSWCCA 144 at [119].

114. Section 193F Crimes Act 1900 (NSW) makes clear that, for the purpose of a s.1930(1) offence, it is not necessary to establish that property is the proceeds of crime of a particular offence or that it had been committed by a particular person.

115. Of relevance to the issues raised in this appeal is s.193FA Crimes Act 1900 (NSW) which provides:

“193FA Combining several contraventions in a single charge

(1)   A single charge of an offence against a provision of this Part may be about 2 or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of this Part.

(2)   If a single charge is about 2 or more such instances and the value of the property dealt with is an element of the offence in question, that value is taken to be the sum of the values of the property dealt with in each of those instances.”

116. Section 193FA is in similar terms to s.400.14 Criminal Code (Cth).

117. It will be apparent that each of the offences in Sequences 5-8 and Sequences 9 and 10 constituted a “rolled up count” in which a large number of individual transfers were included. This practice accorded with s.193FA.

118. The use of rolled-up counts is common in a range of offences, including money laundering and fraud prosecutions, and operates in favour of the offender for the purpose of sentencing: R v Beary (2004) 11 VR 151; [2004] VSCA 229 at [11]-[14] (money laundering); R v Samia [2009] VSCA 5 at [12] (obtaining financial advantage by deception); R v De Leeuw [2015] NSWCCA 183 at [116] (child pornography offences), Johnston v R [2017] NSWCCA 53 at [68]-[69] (fraud); Environmental Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWCCA 289 at [67] (multiple acts of water pollution) and Director of Public Prosecutions (Vic) v Conos [2021] VSCA 367 at [74]-[75] (online grooming and child abuse material offences).

119. In Johnston v R, Bathurst CJ (Fagan J and myself agreeing) said at [68]:

“In considering the question of manifest excess it is necessary to pay regard to the fact that the plea was to a ‘roiled up count’ involving 156 fictitious transactions. The question of sentencing on such a rolled up count was considered by Garling J in R v Richard [2011] NSWSC 866. The offender pleaded guilty to two offences contrary to s 1041G of the Corporations Act 2001 (Cth). The offences involved diverting $26.6 million of superannuation funds into tax havens over a period of 4 years. Garling J (at [65]) observed that rolled up charges include more than one episode of criminal conduct such that the criminality involved is greater than a charge involving only one episode of such conduct. Garling J (at [105]-[1USD identified two advantages to the offender in the use of rolled up charges. First, restriction of the maximum sentence available and, second, the fact that the sentence imposed represents a complete concurrence of separate sentences which might otherwise have been imposed.”

120. It is necessary for a sentencing court to keep in mind the effect of the use of rolled-up counts for money laundering offences, so that a finding concerning objective seriousness will undoubtedly be elevated for a rolled-up count containing a large number of transactions (and a large sum of money) as opposed to a count containing a lesser number of counts (and lesser sum of money).

121. Before the introduction of aggregate sentencing, this Court was critical of a blanket approach to sentencing by way of imposition of a type of “one size fits all” set of sentences which failed to accord with the principles in Pearce v The Queen: Porter v R [2008] NSWCCA 145 at [74].

122. Since the commencement of aggregate sentencing in March 2011, the Court has been called upon to consider principles to be applied when utilising the aggregate sentencing procedure. The leading decision is JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 where R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) set out the relevant principles at [39]440] (emphasis added):

“39   A number of propositions emerge from the above legislative provisions and the cases that have considered aggregate sentencing:

1. Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or ‘stairway’ sentencing structure’ when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nquven v R; R v Nquyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[5 7].

128. The Crown pointed to the number of transactions in each count, and the total sum of money involved in that count, together with other features of the Respondent’s offending including the fact that he received 1% commission between January and September 2018 and 2% commission from October 2018.

129. The Crown submitted that each of the offences fell “within the high range of objective seriousness’ (paragraph 26 — AB306).

130. With respect to the use of aggregate sentencing, the Crown written submissions said (paragraph 39- AB309-310) (emphasis added):

“Given the number of offences for which the offender is to be sentenced, the Court may choose to make use of the aggregate sentencing provision in section 53A of the Crimes (Sentencing Procedure) Act 1999. The decision of JM v R [2014] NSWCCA 297 states that S. 53A offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or ‘stairway’ sentencing structure’ when the principle of totality requires some accumulation of sentences. The CCA held in JM that it is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v R (1998) 194 CLR 610, and noted that the criminal/tv involved in each offence needs to be assessed individual/v. To adopt an approach of making a ‘blanket assessment’ by simply indicating the same sentence for a number of offences is erroneous - R v Brown [2012] NSWCCA 199.”

143. The Crown written submissions concluded in the following way (paragraph 48 — AB312) (emphasis added):

“The offender was an integral member of a sophisticated joint criminal enterprise which, over a period of 18 months, facilitated the laundering of in excess of $103,000,000. The activities of the offender in laundering this money occurred on an almost daily basis. The type of conduct and the money involved in the offences, places them well above the mid-ranqe for offences of this type. It follows in the Crown’s submission that, taking into account his age and subjective case, the objective gravity of the offences requires that the offender be sentenced to a lengthy period of full time custody.”

144. In oral submissions, the Crown submitted (by reference to paragraphs 37-39 of the Crown written submissions) that it would be wrong, in effect, that “one sentence could be imposed that encompasses the criminality of each of the offences” (T44, 24 August 2021 — AB381).

145. In oral submissions in reply, Senior Counsel for the Respondent at first instance made clear that the defence submission was not that the Court “would determine a sentence for a single offence ... that would cover all of them”, but that it was accepted that there would be some accumulation with it being a matter for the sentencing Judge to decide whether there should be “individual sentences or grouping offences together” as was done in Shi v R, but “with a view obviously to some level of concurrency” (T45, 24 August 2021 — AB382).

146. The Crown raised expressly in the District Court, the use of aggregate sentencing, with reference being made to JM v R and a submission that the adoption of a “blanket assessment” approach, by indicating the same sentence for a number of offences, would be erroneous.

147. In my view, the Crown raised sufficiently in the District Court, the approach pressed on appeal to this Court. It is true that the Crown submission was made in general terms and without the type of calibration used in submissions in this Court to distinguish particular counts. Although reference was not made to Subramaniam v R, the Crown submission was sufficiently clear to guard against the use of a blanket approach to nomination of indicative sentences for the s.193C(1) offences.

148. I would uphold the first ground of appeal.

149. I observe that the first ground of appeal operates as particulars of the second ground, in that it serves to explain the imposition of an aggregate sentence which the Crown contends is manifestly inadequate.

Ground 2 — The Aggregate Sentence Pronounced is Manifestly Inadequate

Submissions for the Crown

150. The Crown submitted that the total effective sentence in this case was manifestly inadequate in that it failed to reflect:

1. the seriousness of the s.193C(1) offences as evidenced by, amongst other things, the “extraordinary scale” of the transactions included in the charges and the “massive aggregate sums of objectively suspect cash” (ROS8, 20);

2. the Respondent’s central role in the s.1930(1) offences;

3. the additional serious criminality inherent in the attempt fraud offence under s.192E; and

4. the importance of the principle of general deterrence in cases of such serious offending.

151. 151 Whilst accepting that an appeal against sentence does not involve a mere comparison between sentences imposed in different cases, the Crown referred to Yacoub v R where the appellant was El-Kotob, a co-offender of the Respondent. He was convicted after trial on a single count under s.193C(1) involving the sum of $499,850.00. He was sentenced to imprisonment for three years with a non-parole period of two years and three months and an appeal against conviction and sentence was dismissed. The Crown noted that the head sentence in Yacoub v R was identical to the starting point adopted by the sentencing Judge in the Respondent’s case for Sequences 5-8, even though the Respondent’s offences were significantly more serious. In this way, the Crown sought to rely upon Yacoub v R in support of the present ground of appeal.

152. The Crown submitted that the total amounts involved in each of the s.193C(1) offences were extremely high, ranging between 35 times the threshold (Sequence 5) and 330 times the threshold (Sequence 8). Each sequence involved a large number of transfers ranging from 32 (Sequence 7) to 114 (Sequence 8). The total number of transfers across the six sequence offences was 483.

153. It was submitted that the offending occurred over extended periods with the shortest period being one month (Sequence 7) and the longest period being four months (Sequence 9). The offending continued over a period of 18 months.

154. Whilst the sentencing Judge did not classify the objective seriousness of the offences by reference to a range, the Crown submitted that the findings made reflected the seriousness of the offending with mention being made of a number of findings concerning the role of the Respondent and the scale of the offending.

155. It was submitted that it was relevant that the Respondent’s offending was brought to an end by events outside his control, being the arrest of El-Kotob in April 2019 and then the Respondent’s own arrest in July 2019: Ansari v R (2007) 70 NSWLR 89; [2007] NSWCCA 204 at [134].

156. It was noted that the sentencing Judge found that the Respondent probably experienced a degree of ongoing pressure from EI-Kotob to be involved in the offences (R0S25-26, 35, 37-39). It was submitted that this consideration did not reduce the objective seriousness of the offending in light of the Respondent’s decision to continue to be involved in the offences, the increased level of sophistication in Sequences 9 and 10 and the Respondent’s demonstration of initiative during those periods. The Crown noted that his Honour did not accept that the Respondent had a state of compromised cognition to a degree that would have reduced his moral culpability, with a finding being made that the Respondent’s conduct was “plainly a continued and deliberate course of offending and actions of some complexity” (R0537).

157. With respect to the attempted fraud offence under s.192E Crimes Act 1900 (NSW), the Crown submitted that this offence lay in a different category and entailed a higher maximum penalty. This offence did not involve El-Kotob. Further, the Crown submitted that the objective seriousness of this offence was elevated by the significant amount of money sought to be obtained ($2.5 million), the involvement of several persons, the fact that the Respondent was motivated by financial gain (2% commission being $50,000.00), the Respondent’s use of a fictitious share sale agreement, involving one of the companies to explain the transfer of the sum, and the fact that the Respondent was aware that the funds were the product of fraud at the time of his involvement in his attempt to withdraw the funds. It was noted that the fraud attempt only failed because the bank placed a hold on the funds and refused to allow the withdrawal.

158. Taking into account the features of the two categories of offences, together with the Form 1 matters and the favourable findings with respect to the Respondent’s subjective case, the Crown submitted that an aggregate sentence of five years’ imprisonment with an effective non-parole period of two years and eight months was well outside the appropriate range: Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at [4]. It was submitted that the aggregate head sentence, and the aggregate non-parole period, both failed to reflect the criminality encompassed in the offences to a degree which is obvious, apparent or plain: R v Rae [2013] NSWCCA 9 at [69].

159. It was submitted that the very low starting points with regard to the indicative sentences themselves reflect error so as to fortify a conclusion that the overall sentence was manifestly inadequate.

160. The Crown submitted that the sentences imposed, given the sheer scale of the offending and its sophistication, failed to give sufficient effect to the principle of general deterrence which plays an important part in sentencing for money laundering offences on a large scale: R v Huang; R v Siu at [36].

161. The Crown did not take issue with the discounts allowed by the sentencing Judge, involving a combined discount of 40% for the Respondent’s early guilty pleas and assistance to authorities. It was submitted, however, that the overall effective sentence was manifestly inadequate.

Submissions for the Respondent

162. Mr Johnston SC submitted that the total effective sentence in this case was not manifestly inadequate. The total effective sentence equated to an aggregate sentence, prior to the 40% discount, of imprisonment for eight years and four months. It was submitted that the offences were the product of a course of conduct, and an effective starting point of this order for the combined criminality of the s.193C(1) offences and the s.192E attempted fraud offence, lay within the sentencing discretion of the sentencing Judge.

163. It was submitted that the sentencing Judge found that the Respondent had a very strong subjective case including the level of hardship experienced by the Respondent in custody, the more difficult conditions which he is experiencing as a result of his assistance to authorities, threats to the Respondent and an assault on him which required hospitalisation. Reference was made, as well, to the finding of extra-curial punishment as a factor which reduced the need for personal deterrence.

164. The sentencing Judge had found that the Respondent experienced ongoing anxiety in custody and was suffering from a traumatic stress disorder. The sentencing Judge accepted that the Respondent had demonstrated remorse. The Respondent’s very high level of assistance was taken into account on sentence, with the sentencing Judge being conscious of the need for any discount not to be unreasonably disproportionate to the nature and circumstances of the offences.

165. It was submitted for the Respondent that the sentencing Judge had regard to all factors as part of the discretionary exercise to be undertaken in this case.

166. it was submitted that the Crown did not derive any real assistance from the sentence in Yacoub v R, given the very strong subjective case of the Respondent including his assistance to authorities. It was submitted for the Respondent that a more apposite case to compare was Shi v R, where the offender was to be sentenced for 10 offences under s.400.9(1) Criminal Code (Cth) with each offence carrying a maximum penalty of imprisonment for three years. The total amounts of money in that case exceeded $35 million and concerned conduct over a period of two months. A combined discount for an early plea and limited assistance of 30% was applied. After appeal, an aggregate sentence of imprisonment for four years and nine months with a non-parole period of two years and seven months was imposed, translating to a pre-discount head sentence of about six years and nine months’ imprisonment.

167. It was submitted for the Respondent that the Crown’s assertion of manifest inadequacy downplayed important constraints in the discretionary sentencing exercise. These constraints included the maximum penalty of imprisonment for five years for the s.193C(1) offences, the principle of totality, the role of the Respondent compared to co-offenders and the early, fulsome and ongoing assistance to authorities resulting in significant hardship in custody.

168. When the strength of the subjective factors was taken into account, along with the discounts that had to be applied, it was submitted that the overall sentence was not manifestly inadequate.

Decision on Ground 2

169. In R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193, reference was made (at [123]) to the principles to be applied where a sentence is said to be manifestly inadequate:

“Manifest inadequacy is a conclusion. Intervention on the ground of manifest inadequacy is not justified simply because the result reached at first instance is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, this Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Hili v The Queen (2010) 242 CLR 520 at 538-539; [2010] HCA 45 at [59]. It may be taken that there will be a range of possible sentences that could be imposed by a sentencing Judge without error: AB v The Queen (1999) 198 CLR 111 at 128; [1999] HCA 46.”

170. In this case, the Crown contends, in effect, that error occurred in the approach to nomination of indicative sentences for the s.193C(1) offences and, thereafter, the Respondent’s persuasive subjective considerations were allowed to unduly overshadow the substantial objective gravity of his offences, with the result that there is a clear failure to ensure reasonable proportionality between the seriousness of the offences and the total effective sentence imposed: R v Dodd (1991) 57 A Crim 349 at 354.

171. I have already concluded, with respect to Ground 1,thatan erroneous approach was taken to the nomination of indicative sentences for the s. 193C(1) offences. This conclusion fortifies the Crown submission that the overall effective sentence imposed was manifestly inadequate.

172. A common feature of money laundering cases is that it will frequently be impossible to identify the origins of the funds: Ansari v R at [122]-[123]. Perhaps the most important consideration in sentencing for money laundering offences will be what the offender actually did, with what authority and over what period of time: R v Li [20101 NSWCCA 125 at [41].

173. Other important considerations include:

1. the total amount involved in the offending and the measure by which that amount exceeds the threshold for the offence: R v Li at [42]; R v Ly (2014) 241 A Crim R 192; [2014] NSWCCA 78 at [86](3);

2. the number of transactions engaged in by the offender and the period over which the transactions occurred: R v Ly at [86](4);

3. the seriousness of offending is elevated where the offences were committed for profit and motivated by greed: Ansari v R at [132]; R v Huang; R v Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259 at [38];

4. the degree of planning or deceit involved in the commission of the offence and whether actual loss resulted: R v Li at [41];

5. general deterrence is a matter of importance in sentencing for money laundering offences involving ongoing and large-scale activity: R v Huang; R v Siu at [36]; R v Guo (2010) 201 A Crim R 403; [20101 NSWCCA 170 at [99].

174. This was a serious course of offending over about 18 months. involving a very large number of transactions and an extraordinarily large total sum of about $103 million. Although the Respondent played a lesser role than Et-Kotob, the Respondent himself was a persistent offender who demonstrated, at times, initiative and a degree of sophistication in his offending. This was a calculated course of conduct in which the Respondent was motivated by financial gain.

175. In my view, the s.193C(1) offences contained in Sequences 5-10 each fell well above the mid-range of objective gravity, and in the high range for offences of that type. This finding should be kept in mind in considering the Crown’s claim of manifest inadequacy.

176. The sentencing Judge made a finding concerning the circumstances in which the Respondent continued to involve himself in the offending, despite his misgivings and pressure applied upon him by El-Kotob. Although the Respondent did not give evidence at the sentencing hearing, the evidence of Detective Senior Constable Michael provided support for these findings. However, it was not submitted, on the Respondent’s behalf, that there was a form of non-exculpatory duress which ought be taken into account on sentence in accordance with the principles in Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215.

177. It is necessary to keep firmly in mind that the Respondent was to be sentenced for s.1930(1) offences which involved objective criminality and did not turn on the state of mind of the Respondent. This lesser form of money laundering offence is reflected in the maximum penalty for s.1930(1) offences of imprisonment for five years.

178. A number of the matters relied upon by the sentencing Judge with respect to the greater hardship in custody which the Respondent would suffer because of his assistance to authorities, were themselves factors which are reflected in the discount for assistance arising under s.23 Crimes (Sentencing Procedure) Act 1999 (NSW) and s.16A(2)(h) Crimes Act 1914 (Cth). That said, his Honour made a further finding of extra-curial punishment and the Crown accepted, in the District Court, that it was open to his Honour to make such a finding.

179. In accordance with well-established principles, the sentencing Judge applied the discounts for the Respondent’s pleas of guilty and assistance to authorities to the indicative sentences (for the State offences) and the separate sentence for the Commonwealth offence: BB v R [2021] NSWCCA 283 at [65]-[66]. No real assistance is provided by an assumption of the presumed starting point by reference to the aggregate sentence, as opposed to the component indicative sentences: BB v R at [67]-[69]. The argument (as noted at [162] above) does not assist the Respondent.

180. Comparison of the sentencing outcome for the Respondent with other individual cases, such as Yacoub v R and Shi v R, does not substantially advance the Crown claim of manifest inadequacy in this case. The assessment which is required addresses the objective criminality, the Respondent’s subjective circumstances and the necessity to maintain reasonable proportionality between these aspects including the discount on sentence arising from assistance to authorities.

181. Having considered all the circumstances of the case and the findings made by the sentencing Judge which are not challenged in this Court, I am persuaded that the overall sentencing outcome in this case is manifestly inadequate.

The Residual Discretion

182. If the Court found error, Senior Counsel for the Respondent read the affidavit of Jessica Su, solicitor, dated 2 February 2022.

183. In addition, the Court received, on a confidential basis, the affidavit of Detective Superintendent Daniel Doherty sworn 14 January 2022 with respect to the Respondent’s assistance to law enforcement authorities, including ongoing assistance. That affidavit stated that the Respondent had provided valuable assistance to police in areas extend beyond the present offences.

182. A statement of Detective Senior Constable Michael dated 14 January 2022 (which was annexed to the affidavit of Detective Superintendent Doherty) particularised the assistance provided by the Respondent in a number of areas, with his assistance being classified as being high or medium-to-high, and as ongoing in a number of significant respects. The statement of Detective Senior Constable Michael addressed each of the components of s.23(2) Crimes (Sentencing Procedure) Act 1999 (NSW) with strongly favourable opinions being expressed concerning the significance and usefulness of the assistance, the truthfulness, reliability and completeness of the information, the extent and timeliness of the assistance as well as the more onerous custodial conditions (including assaults) to which the Respondent has been subject.

183. In effect, there is an additional and powerful body of evidence concerning the Respondent’s assistance to law enforcement authorities since sentence was passed in the District Court.

Submissions

186. Mr Johnston SC submitted that this is a case in which, if the Crown established error, the Court should decline to intervene on a discretionary basis. It was submitted that the Respondent had been in custody since his arrest on 11 July 2019 with his date for custodial release being imminent, namely 10 March 2022. It was submitted that the Respondent had taken substantial steps towards his rehabilitation and that this progress would be impacted significantly by resentence at this stage.

187. A further and significant factor relied upon by the Respondent was the substantial and additional assistance which the Respondent had provided to investigating police since sentence was passed as described in the confidential affidavit of Detective Superintendent Doherty dated 14 January 2022.

188. It was submitted that the additional assistance provided by the Respondent was of a high quality and value and justified a discretionary determination not to intervene in this case.

189. The Crown submitted that the Court should proceed to resentence the Respondent. It was argued that the Crown had acted without delay in bringing the appeal. Whilst the Respondent is due to be released on 10 March 2022, the Crown submitted that this should not lead the Court to decline to resentence in view of what was said to be the significant disparity between the sentence that should have been imposed and the sentence that was imposed in this case.

190. The Crown submitted that the need for denunciation, punishment and general deterrence would be undermined by allowing the manifestly inadequate sentence imposed to stand: R v O’Connor [2014] NSWCCA 53 at [89]; R v JD [2018] NSWCCA 233 at [105].

Decision on Exercise of Residual Discretion

191. The Court having found error, it remains for the Crown to satisfy the Court that the residual discretion should be exercised to resentence the Respondent: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.

192. Circumstances that may combine to produce injustice if the Crown appeal is allowed, and the Respondent resentenced, include delay in the hearing or determination of the appeal, the imminent or past occurrence of the Respondent’s release on parole or unconditionally and the effect of resentencing on progress towards the Respondent’s rehabilitation: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA49 at [43].

193. It has been said that the primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v the Queen at [1]-[2]. What the Court has said in the present judgment about the sentencing of persons for rolled-up counts under s.193C(1) Crimes Act 1900 (NSW) serves this purpose.

194. There was no delay in the institution of the Crown appeal in this case or in notice being given to the Respondent. The Crown did not advance the precise submission made in this Court by reference to Subramaniam v R, before the District Court. Nevertheless, the Crown argued that a “blanket assessment” should not be made (see [138]-[147] above). This aspect should not operate against the Crown in the exercise of the residual discretion.

195. The material before the Court indicates that, when eligible for release from custody, the Respondent will be housed for a period of time whilst proceedings are on foot before, in due course, being transferred to immigration detention in advance of deportation.

196. The evidence indicates that the Respondent has taken substantial steps towards his rehabilitation in custody. It is the case that the Respondent’s earliest release date is imminent, so that an increase in his sentence will serve to undermine his progress towards rehabilitation.

197. This is a most unusual case. The Respondent’s substantial assistance to law enforcement authorities has led to all but one of his co-offenders entering pleas of guilty. The prospect of the Respondent giving evidence at any trial clearly led to his co-offenders pleading guilty and not going to trial, in circumstances where they could see the “writing on the wall” if they proceeded to trial.

198. The evidence of recent assistance goes substantially beyond the level of assistance taken into account on sentence in the District Court. If the Respondent was to be resentenced in this Court, there would be a strong argument for a greater discount to be allowed for assistance, whilst ensuring that the ultimate sentence was not unreasonably disproportionate to the nature and circumstances of the offences.

199. The term “unreasonably” in s.23(3) Crimes (Sentencing Procedure) Act 1999 (NSW) has a wide operation and includes an evaluation of the nature and extent of the assistance provided to law enforcement authorities: CMB v Attorney General (NSW) at [41]; HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [19]. In the present case, the nature and extent of the Respondent’s assistance has been very substantial and multifaceted.

200. In exercising the residual discretion, the Court should take into account the limited purposes of a Crown appeal, namely, to state the principles to be applied on sentence and to provide guidance to sentencing Judges: HT v The Queen at [20]. In my view, the judgment of this Court serves those purposes. I keep in mind, as well, that what is said in this judgment will limit (if not exclude) any effective reliance being placed upon the Respondent’s sentences by his co-offenders by reference to the parity principle.

201. In the exceptional and unusual circumstances of this case, in the exercise of the residual discretion, I am not satisfied that the Court should proceed to resentence the Respondent.

202. I propose that the Crown appeal be dismissed.

203. HARRISON J: I agree with Johnson J and with the additional remarks of Fagan J.

204. The limitations upon the extent to which it is ever permissible to have regard to indicative sentences in an appeal challenging the adequacy or the excessiveness of an aggregate sentence are well-known and need not be repeated. In an appropriate case, the comparative length and structure of the indicative sentences may offer an insight into the manner in which an aggregate sentence has been formulated. That may more readily be seen to be so where a number of the offences for which an offender is being sentenced are like offences attracting the same maximum penalty and where the reason for the different indicative sentences is not readily discernible. That is the position here. In joining in the orders of the Court, I should not wish to be seen as having endorsed or encouraged any different approach concerning the limited relevance of indicative sentences in sentence appeals. Nothing in the detailed reasons of Johnson J or the additional remarks of Fagan J derogates from that approach.

205. FAGAN J: Before joining in the order for dismissal of this Crown appeal, which was pronounced on 8 March 2022, I had the advantage of reading Johnson J’s reasons in draft. I agree with those reasons and add only the following observations.

206. With respect to ground 1, despite the best endeavours of the respondent’s counsel in written and oral argument, I cannot find a supportable rationalisation for the learned sentencing judge having adopted the same indicative sentence for each of Sequences 5-8 or for his Honour having uplifted the indicative sentences for each of Sequences 9-10 by only 3 months.

207. Johnson J has set out in table form the precise amounts of money and the number of transfers covered by each of the six offences against s 193C(1) of the Crimes Act. Sequence 5 involved dealing in approximately $3.5 million. Sequences 6 and 7 were comparable with each other but concerned amounts three to four times greater than Sequence 5. Sequence 8 involved nearly $34 million, which was double again. These four offences were committed between 22 January and 19 September 2018, a period in which all other significant sentencing factors remained substantially constant. The requirement of s 53A(2)(b) of the Crimes Sentencing Procedure) Act, that his Honour “must indicate ... the sentence that would have been imposed for each offence ... had separate sentences been imposed instead of an aggregate sentence”, necessarily should have led to differences between the indicative sentences, to reflect the variance in objective gravity arising from the significantly greater amounts of money and/or numbers of transactions in some of these offences relative to others.

208. Sequences 9 and 10 involved amounts and numbers of transactions comparable to Sequences 6 and 7 but occurred during the period October 2018 to April 2019, in which the offender had set up new companies to carry on the activity and had negotiated with El-Kotob an increase in his commission from 1% to 2%. These two offences involved greater criminality than Sequences 6 and 7. Some difference in penalty was also called for by the circumstance that a Form 1 matter had to be taken into account in each case. The Form 1 matters were not insignificant and involved criminality of a different nature from one to the other. The proper exercise of the sentencing discretion in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act was not discharged by adopting a 3 month increase over the indicative sentences for each of Sequences 5-8, which were themselves not coherent by reason of their uniformity in the face of varying criminality.

209. There is no express reasoning in the learned judge’s Remarks to support the lack of differentiation between the indicative sentences for Sequences 5-8 or the minimal increase in the sentences for Sequences 9 and 10. No rationale can be inferred or imputed from the circumstances. As contended by the Crown in ground 1, error is demonstrated

210. With respect to ground 2, in forming a view as to whether the aggregate sentence for the State offences is manifestly inadequate, the most important caution is to make due allowance for the fact that the aggregate takes into account significant discounting of the indicative sentences that otherwise would have been imposed. The total discount of 40% was well justified, considering the valuable assistance provided. The sentence passed for the State offences, of 5 years imprisonment with a non-parole period of 2 years and 6 months, was a very low aggregate for one significant contravention of s 192E(1)(b) of the Crimes Act, concerning a deception with respect to a sum of $2.5 million, and six offences against s 193C(1), constituted by dealing over 15 months with approximately $100 million for which there are reasonable grounds to suspect that the money is proceeds of crime. The discounted sentence imposed for the Commonwealth offence, of dealing with a further $590,970 for which there were reasonable grounds to suspect that it was proceeds of crime, had no substantive effect beyond increasing by 2 months the period before the respondent could be released to parole. After making full allowance for the respondent’s favourable subjective circumstances, for the fact that the low aggregate reflects justifiable discounting of the indicative sentences by 40% and for the equivalent discounting of the penalty for the Commonwealth matter, I concur in Johnson J’s view that the overall sentencing outcome is manifestly inadequate.

211. I agree with Johnson J’5 reasons for not proceeding to resentence the respondent, in exercise of the Court’s residual discretion, and I have nothing to add on that subject.

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Decision last updated: 04 June 2025