Islam v R

1. [1]

   JOHNSON J: The Applicant, Prabal Islam, seeks leave to appeal against sentences imposed on 8 August 2014 with respect to two money laundering offences under the Criminal Code 1995 (Cth) (“the Code”).

The Charges and Sentences

1. [2]

   Following pleas of guilty in the Local Court on 26 June 2013, the Applicant was committed for sentence to the District Court. On 12 June 2014, he appeared before his Honour Judge Blackmore SC on two counts:

2. [3]

   In addition to these offences, pursuant to s.16BA Crimes Act 1914 (Cth), the Applicant requested the sentencing Judge to take into account, on sentence for Count 2, a further offence of, on about 1 August 2012 at Mascot, attempting to move physical currency to the value of $10,000.00 or more out of Australia without a report, contrary to s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). If dealt with separately, this offence carried a maximum penalty of two years’ imprisonment or a fine of 500 penalty units ($55,000.00) or both.

3. [4]

   Sentencing proceedings were conducted before his Honour on 12 June, 31 July, 5 and 8 August 2014. On 8 August 2014, the Applicant was sentenced to the following terms of imprisonment:

4. [5]

   With partial accumulation of the sentence for Count 2, the total effective sentence comprised imprisonment for six years commencing on 25 July 2014 and expiring on 24 July 2020, with a non-parole period of four years commencing on 25 July 2014 and expiring on 24 July 2018.

Grounds of Appeal

1. [6]

   The Applicant relies upon three grounds of appeal:

Facts of Offences

1. [7]

   A statement of agreed facts was tendered at the sentencing hearing and what follows is drawn from that statement.

2. [8]

   On 30 July 2012, police intercepted a telephone call between the Applicant (then 25 years old) and Abu Saleh (“Saleh”) in which the Applicant discussed the booking of tickets for flights for himself and others. The conversation was as follows:

3. [9]

   On 31 July 2012, the Applicant purchased from Delight Travel Pty Limited, seven business class tickets, one first class ticket and one first class child ticket to Dhaka, Bangladesh for travel on Singapore Airlines on 1 August 2012. All of the tickets were for return travel. The Applicant paid $58,660.00 in cash for the tickets.

4. [10]

   On the evening of 31 July 2012, police observed the Applicant attending an Ashfield address leased by Saleh and leaving a short time later, carrying an open top bag containing a number of packages. The Applicant placed the open top bag in the boot of a Porsche Cayenne. Later on the same evening, police observed the Applicant attend the city office of a solicitor who had previously acted for Saleh, where he collected a black sports bag which had been left there. The Applicant was in possession of each of these bags on 1 August 2012 when he attended the Airport. The open bag and black sports bag each contained a number of coloured Louis Vuitton and Gucci cotton shoe bags (“the shoe bags”).

5. [11]

   At about 9.30 am on 1 August 2012, the Applicant attended the Sydney International Airport at Mascot with his co-offenders, Cheuk Fai Chan (“Chan”) and Andrew Almada (“Almada”) and met with a group of seven other travellers, including the Applicant’s father and several members of his family. The Applicant and his companions were scheduled to depart on a Singapore Airlines flight to Dhaka, Bangladesh later that day.

6. [12]

   The Applicant was carrying the open top bag and the black sports bag which contained the shoe bags.

7. [13]

   Shortly after the Applicant met the group, the following took place:

8. [14]

   After checking in for their flight, the Applicant and his fellow travellers attempted to pass through Customs. The Applicant, his father, Almada and Chan had each completed and presented outgoing passenger cards on which they had declared that they were not taking more than AUD$10,000.00 out of Australia. The group was selected for a 100% baggage check of their checked-in suitcases. They were escorted to the Customs outwards examination area and their checked-in suitcases were retrieved to conduct a baggage check.

9. [15]

   After being selected for the baggage search, the Applicant made a telephone call to Saleh at about 10.30 am. Clearly, the two men were concerned. The conversation was as follows:

10. [16]

    During the baggage examination process, the Applicant identified three suitcases that belonged to him and confirmed that he had packed the bags and was aware of their contents. When asked about the contents, the Applicant advised Customs that he had “just over $10,000.00” with him. Customs officers then searched the Applicant’s luggage and located AUD$359,650.00 in $50.00 and $100.00 denominations hidden inside two shoe bags.

11. [17]

    After the money had been located, the Applicant informed Customs officers that he had also put money in the suitcases of his father, Chan and Almada. Customs officers searched the suitcases of the other travellers and located:

12. [18]

    The total amount of cash hidden inside the suitcases was AUD$1,023,900.00. When spoken to by Customs, the Applicant declared that the money was his and that he had packed it in the bags of the others.

13. [19]

    Following his arrest on 1 August 2012, the Applicant spent eight days in custody before his release on bail on 8 August 2012.

14. [20]

    Department of Immigration and Citizenship records showed that the Applicant, Almada and Chan had travelled to Singapore together in May 2012.

15. [21]

    The Applicant had not lodged a tax return since 2006. He had been in receipt of Newstart Allowance for the following periods:

16. [22]

    In his outgoing passenger card completed on 1 August 2012, the Applicant indicated that his occupation was “student”.

Course of Proceedings in the District Court

1. [23]

   The sentencing hearing commenced in the Sydney District Court on 12 June 2014. On that date, the hearing was adjourned for sentence to 31 July 2014 and the Applicant’s bail was continued. Conditions of his bail included surrender of his passport and not to leave Australia or approach any points of international departure from Australia.

2. [24]

   On 13 June 2014, the Applicant breached his bail by leaving Australia and travelling to Bangladesh, using a New Zealand passport of which Australian authorities were unaware. The Applicant was in Bangladesh between 14-16 June, then Bangkok from 16 June to 1 July, then Singapore from 1 July to 18 July, then Bangladesh again from 18 to 30 July, then Bangkok again from 31 July to 2 August before he returned to Australia on 3 August 2014.

3. [25]

   On 31 July 2014, the proceedings were adjourned until 8 August 2014 and a bench warrant issued.

4. [26]

   Upon his return to Australia on 3 August 2014, the Applicant was arrested at Brisbane Airport under the bench warrant and he remained in custody until he was sentenced on 8 August 2014.

The Applicant’s Subjective Circumstances

1. [27]

   The Applicant was born in 1986. He was 25 years old at the time of the offences and 28 years of age at the time of sentence.

2. [28]

   A presentence report and a report of Michelle Player, clinical psychologist, dated 17 September 2013 were before the sentencing court.

3. [29]

   The Applicant did not give evidence at the sentencing hearing.

4. [30]

   The reports indicated that the Applicant was born in Bangladesh and came to Australia, via New Zealand, in 1997. According to the presentence report, the Applicant had a normal upbringing and described his parents as supportive. He completed his Higher School Certificate in 2004 and had undertaken studies in business administration, accounting and real estate although he had not completed these courses. He informed the author of the presentence report that he had been employed for 18 months up to November 2013 by a real estate agency on a retainer and commission basis.

5. [31]

   The Applicant informed the author of the presentence report that he had been using the drug “Ice” in a six-month period prior to his arrest. He claimed that he had been in debt to his drug dealer to the amount of $6,000.00 - $7,000.00 and that this was his motivation for becoming involved in the offences.

6. [32]

   The Applicant has a criminal history in New South Wales extending back to 2005. He committed five offences of driving whilst suspended or driving whilst disqualified in 2005. Further offences of driving whilst disqualified were committed in 2007 and 2009. For the 2009 offence, he was sentenced to six months’ imprisonment.

7. [33]

   In 2008, the Applicant was sentenced to terms of imprisonment for a computer offence under s.308C Crimes Act 1900 (NSW) (causing an unauthorised computer function with intent to commit a serious indictable offence) and an offence of obtaining money by deception. The convictions and sentences were confirmed on appeal to the Sydney District Court.

8. [34]

   In 2010, the Applicant was sentenced to an effective term of 18 months’ imprisonment for further s.308C offences and offences of obtaining money by deception. An appeal to the District Court against conviction and sentence was dismissed in June 2010.

9. [35]

   The presentence report indicated that the Applicant came to the attention of the Probation and Parole Service in 2005, when he was sentenced by way of good behaviour bonds for offences of driving whilst suspended. He came to the attention of the Service again in July 2007 as a result of sentences by way of community service orders for offences of dishonesty. The Applicant’s performance on those orders was unsatisfactory.

10. [36]

    In 2009, he was supervised for a short period whilst on parole and was subject to parole again between September 2011 and May 2012.

11. [37]

    Accordingly, the present offences were committed some three months after the Applicant had completed a period of parole.

The Applicant’s Co-Offenders

1. [38]

   The co-offenders, Almada and Chan, were also sentenced by his Honour Judge Blackmore SC on 8 August 2014. Each of them pleaded guilty to one count of dealing with money reasonably suspected of being proceeds of crime to the value of $100,000.00 or more, contrary to s.400.9(1) of the Code. Each of Almada and Chan requested the sentencing Judge to take into account, under s.16BA Crimes Act 1914 (Cth), a further offence of attempting to move physical currency to the value of $10,000.00 or more out of Australia without a report, contrary to s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

2. [39]

   Chan was sentenced to 12 months’ imprisonment with a direction that he be released at the expiration of four months, upon entering into a recognisance under s.20(1)(b) Crimes Act 1914 (Cth) to be of good behaviour for three years.

3. [40]

   Almada was sentenced to 18 months’ imprisonment with a direction that he be released at the expiration of nine months, upon entering into a recognisance under s.20(1)(b) to be of good behaviour for three years.

Some Findings of the Sentencing Judge

1. [41]

   Before moving to the grounds of appeal, it is appropriate to set out a number of findings by the sentencing Judge, some of which give rise to grounds of appeal.

2. [42]

   The sentencing Judge undertook an assessment of the seriousness of the Applicant’s offences (relevant to the first ground) (AB40-41) (emphasis added):

3. [43]

   With respect to the Applicant’s background and subjective circumstances, his Honour said (relevant to the third ground) (AB41-43) (emphasis added):

4. [44]

   His Honour found that the Applicant was “the principal offender of the three” (AB43).

5. [45]

   The sentencing Judge addressed the timing of the pleas of guilty, the Applicant’s willingness to consent to a confiscation order and the determination of the non-parole period for the Applicant (relevant to the second and third grounds) (AB44-45) (emphasis added):

Ground 1 - Suggested Error in Characterisation of the Offending on Count 2

1. [46]

   Mr Game SC, for the Applicant, submitted that the “dealing” with respect to each count was possession of the money. In respect of Count 2, the dealing (possession) must be done with a particular intention in relation to some future activity: Milne v The Queen [2014] HCA 4; 252 CLR 149 at 164 [37]. He submitted that the nature of the intended future criminal use of the money was clearly relevant to the criminality involved in the offending.

2. [47]

   It was submitted that the sentencing Judge considered that the element of “instrument of crime” consisted of the future use of the money overseas in some “criminal activity”. The Applicant submitted that this was not the gravamen of the offence, nor was it permissible to sentence on this basis.

3. [48]

   Although neither the charge nor the agreed facts indicated without doubt what the intended use of the money was, the Applicant submitted that the Crown submissions in the District Court had stated that the future intended use of the money, as an “instrument of crime”, was the removal of the funds from Australia without report contrary to s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

4. [49]

   Mr Game SC submitted that the sentencing Judge’s speculative consideration of the future use of the money contemplated criminality significantly worse than that encompassed in the plea and the case alleged by the Crown. In this way, it was submitted that his Honour had fallen into error.

5. [50]

   The Crown submitted that the impugned sentencing remarks did not compel a conclusion that his Honour sentenced the Applicant on Count 2 with respect to criminality that was significantly worse than that encompassed by the plea in the case alleged by the Crown.

6. [51]

   The Crown submitted that the gravamen of the offence is the present dealing with money or other property, accompanied by an intention to use that money or property in future criminal activity. The Applicant had pleaded guilty to an unparticularised offence of dealing with more than $1 million, intending that the money would become an instrument of crime.

7. [52]

   It was acknowledged that, in submissions before the District Court, the Crown had identified the predicate offence as being breaches of the reporting requirements under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). It was submitted that, if his Honour’s finding that he was satisfied the money would become an instrument of crime was a reference to a s.53 offence, it was uncontroversial.

8. [53]

   Even if his Honour’s remarks were to be construed as a reference to an unspecified potential intended use to be made of the money in the event that it had been successfully smuggled out of the country by the Applicant, the Crown submitted that his Honour’s remarks did not demonstrate error. His Honour had noted, on a number of occasions, that the evidence was not capable of establishing the particular purpose or intended use for the money.

9. [54]

   Consequently, it was submitted that his Honour’s finding was neutral, and was simply a finding that the Court was satisfied that the money the Applicant dealt with possessed the necessary character required by the offence provisions. It was submitted that his Honour’s remarks are not capable of being viewed as a finding that aggravated the seriousness of the Applicant’s offence.

10. [55]

    The Crown submitted that it was pertinent to note that the sentencing Judge had made no finding that the money was to be used for any particular future crime or purpose, and made no finding that the Applicant himself was aware of any such purpose. Such findings may have constituted aggravating factors or have been capable of affecting the objective seriousness of the offence. The Crown submitted, however, that his Honour’s findings did not operate in this way.

11. [56]

    An offence under s.400.9(1) of the Code (such as Count 1) relates to past use of money or property valued at $100,000.00 or more - is it reasonable to suspect that the money or property (dealt with by the offender) is the proceeds of crime?

12. [57]

    A s.400.3(1)(b)(ii) offence (such as Count 2), on the other hand, concerns the future use of money or property valued at $1,000,000.00 or more - does the person (who deals with the property) intend that the money or property will become an instrument of crime?

13. [58]

    The first count involved an offence under s.400.9(1) of the Code which provides:

14. [59]

    The second count involved a charge under s.400.3(1) of the Code which states:

15. [60]

    The term “deals with money or other property” is defined in s.400.2 of the Code:

16. [61]

    Section 400.1(1) of the Code defines “proceeds of crime” (relevant to Count 1):

17. [62]

    Section 400.1(1) of the Code defines “instrument of crime” (relevant to Count 2):

18. [63]

    Finally, it is appropriate to set out the terms of s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (the offence to be taken into account on sentence for Count 2):

19. [64]

    The breadth of conduct covered by money laundering offences in Pt 10.2 of the Code has been emphasised: R v Guo; R v Qian [2010] NSWCCA 170; 201 A Crim R 403 at 414 [84]. The broad definitions of “deals with money or other property”, “proceeds of crime” and “instrument of crime” serve to explain the breadth of conduct involved in money laundering offences.

20. [65]

    In R v Ansari [2007] NSWCCA 204; 70 NSWLR 89, Howie J said at 118 [119]:

21. [66]

    The proper construction of s.400.3(1)(b)(ii) of the Code was considered by the High Court of Australia in Milne v The Queen. The Court (French CJ, Hayne, Bell, Gageler and Keane JJ) said at 163 [33] (footnotes omitted):

22. [67]

    The High Court returned to the definition of “instrument of crime” in Milne v The Queen at 164 [37]:

23. [68]

    In R v Ansari, Howie J, at 118-119 [120]-[124], referred to circumstances where the origin of money or property, or its intended criminal use, may not be identified:

24. [69]

    During the course of oral submissions at the sentencing hearing, the Crown made clear that the intended offence as an “instrument of crime” in Count 2 was the breach of reporting requirements under s.53(1). It appears from the following exchange that the sentencing Judge had in mind factors of the type referred to by Howie J in R v Ansari (at [68] above). The Crown made clear, however, the limited way in which it put its case on the s.400.3(1)(b)(ii) count (AB21):

25. [70]

    This approach was confirmed in the Crown’s written submissions before the District Court (AB93):

26. [71]

    This submission was repeated elsewhere in the Crown’s written submissions before the sentencing Judge concerning the s.400.3(1)(b)(ii) offence (AB96):

27. [72]

    This was not a case, of the type referred to by Howie J in R v Ansari (see [68] above), where it was necessary for the sentencing court to consider the nature of intended use of the money as an instrument of crime. Here, the Crown adopted the approach, perhaps generously to the Applicant, that the intended use of the money so as to become an instrument of crime related to breaches of the reporting requirement in s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The Crown did not put its case on this aspect by reference to what may be done with the money once it reached Bangladesh.

28. [73]

    The Crown having put its case in this way, it was not open to the sentencing Judge to approach the element of intention that the money will become an instrument of crime upon the basis that the Applicant was carrying out “a very serious offence allowing his transfer [of] over one million dollars from the country for use in criminal activity” (see [42] above).

29. [74]

    I accept the Applicant’s submission that his Honour’s finding on this aspect was based upon the intended use of the money for a more serious unidentified criminal purpose than that which the Crown had relied upon at the sentencing hearing. In this way, the sentencing Judge has fallen into error in a manner which operated adversely to the Applicant.

30. [75]

    I am satisfied that the first ground of appeal has been made good.

Ground 2 - Suggested Error in Determination of the Non-Parole Period Component of the Total Sentence by the Application of a Presumptive Non-Parole Period

1. [76]

   Mr Game SC submitted that the sentencing Judge had fallen into error in stating that the “usual ratio” applied in the determination of the non-parole period for Commonwealth offences and that “no additional reduction is required”. It was submitted that this approach was inconsistent with the proper exercise of sentencing discretion for Commonwealth offences, including the determination of the non-parole period: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 534 [44].

2. [77]

   The Crown conceded that the sentencing Judge had fallen into error in the manner identified in the second ground.

3. [78]

   However, the Crown submitted that the Court would conclude, in any event, that no lesser sentence was warranted under s.6(3) Criminal Appeal Act 1912 (NSW).

4. [79]

   His Honour was not assisted on this question by a submission for the Applicant which sought (wrongly) to apply the “special circumstances” formula in s.44 Crimes (Sentencing Procedure) Act 1999 (NSW) to Commonwealth offences (see [45] above).

5. [80]

   However, I am satisfied that the sentencing Judge fell into error in approaching the determination of the non-parole period by reference to the “usual ratio”, and the conclusion by his Honour that “no additional reduction is required” (see [45] above).

6. [81]

   The High Court made clear in Hili v The Queen, at 526 [13], 532-533 [37]-[38], that there is no judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve, prior to release on parole. Part 1B of the Crimes Act 1914 (Cth) makes exhaustive provision for fixing non-parole periods for federal offenders: Hili v The Queen at 527-528 [22].

7. [82]

   A sentencing Judge should determine the length of sentence to be served before release on parole by reference to, and application of, s.16A Crimes Act 1914 (Cth) and the principles identified in Power v The Queen [1974] HCA 26; 131 CLR 623; Deakin v The Queen [1984] HCA 31; 58 ALJR 367 and Bugmy v The Queen [1990] HCA 18; 169 CLR 525: Hili v The Queen at 533 [40]. A critical consideration is the determination of the period of imprisonment that justice requires an offender must serve in custody: Hili v The Queen at 533 [41]. The non-parole period is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender’s subjective circumstances: Power v The Queen at 627-629. The risk of reoffending is a relevant factor in setting the minimum term: Bugmy v The Queen at 537.

8. [83]

   In Hili v The Queen at 533 [41], the High Court said that the necessary deterrent and punitive effects of sentences for serious tax frauds must be reflected in both the head sentence and the minimum term. The same may be said with respect to serious money laundering offences as seen in the present case.

9. [84]

   Error has been demonstrated in accordance with the second ground of appeal.

Ground 3 - Suggested Error by Giving No Weight to Contrition Because of the Absence of Sworn Evidence from the Applicant

1. [85]

   The Applicant submitted that the sentencing Judge had fallen into error in his approach to contrition, by treating the Applicant’s failure to give sworn evidence as being a decisive factor (see [43] above).

2. [86]

   Although this aspect may have been of particular significance on sentence for a State offence (s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW)), it was submitted that there is no equivalent provision in Commonwealth legislation. Section 16A(2)(f) Crimes Act 1914 (Cth) requires a sentencing court to take into account the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner.

3. [87]

   Reference was made to the statement by the author of the presentence report that the Applicant “expressed regret for involving family members and others in his offending” (AB71). It was noted, as well, that the clinical psychologist, Ms Player, had stated that the Applicant “expressed remorse for his involvement in his offending” (AB85).

4. [88]

   It was submitted further that the Applicant had consented to an order for forfeiture under the Proceeds of Crime Act 2002 (Cth) and had been provided with a letter from the Australian Federal Police to this effect. Although his Honour took account of this as illustrating the Applicant’s willingness to facilitate the course of justice, it was submitted that it was also capable of evidencing remorse.

5. [89]

   The Applicant submitted that, under federal sentencing legislation, where an offender provides co-operation regarding a confiscation order, it may evidence contrition and remorse: s.16A(2)(f) Crimes Act 1914 (Cth); s.320 Proceeds of Crime Act 2002 (Cth); Stock v R [2011] NSWCCA 49 at [36]; McMahon v R [2011] NSWCCA 147 at [72].

6. [90]

   The Applicant submitted that error had been demonstrated in accordance with this ground of appeal.

7. [91]

   The Crown submitted that the Applicant bore the onus of satisfying the sentencing court, to the civil standard, that he was contrite for his offending. His Honour was not bound to give weight to, or even accept, the various expressions of remorse relied upon by the Applicant.

8. [92]

   The Crown submitted that the fact that s.16A(2)(f) Crimes Act 1914 (Cth) is not expressed in the same terms as s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW) had no significance, as this Court has said that a sentencing Judge is not bound to give weight to suggested expressions of remorse contained in third-party reports: R v Qutami [2001] NSWCCA 353; 127 A Crim R 367.

9. [93]

   The Crown submitted that the expressions of contrition contained in the presentence report and psychological report were unpersuasive expressions of any real contrition. The Crown pointed, as well, to the Applicant’s departure from Australia whilst awaiting sentence, with him travelling to Bangladesh on a New Zealand passport, and remaining absent and in breach of his bail until he chose to return some weeks later.

10. [94]

    The Crown submitted that the sentencing Judge had taken into account the Applicant’s consent to forfeiture of the money that he and others had been in possession of when arrested at the Airport. The Crown submitted that his Honour had rightly observed that this was a matter of little weight and was not a matter that demonstrated contrition to any significant degree, if at all.

11. [95]

    This Court has observed that the assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction: Mun v R [2015] NSWCCA 234 at [29]. Further, it has been emphasised that considerable caution must be exercised in determining what weight, if any, can be placed upon self-serving and untested statements by an offender contained in a report of a health professional: Mun v R at [40].

12. [96]

    It has been said that remorse means regret for the wrongdoing which the offender’s actions have caused because it can be safely assumed that an offender will always regret the fact of apprehension: Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 at 313 [44].

13. [97]

    I do not consider that the sentencing Judge erred in taking into account the absence of evidence from the Applicant on the question of contrition and remorse. His Honour did not purport to apply s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW). Rather, his Honour had regard to all matters that were capable of shedding light upon the existence of genuine contrition and remorse, as to which the Applicant bore the onus of proof to the civil standard.

14. [98]

    The sentencing Judge was entitled to have regard to the absence of sworn evidence from the Applicant concerning contrition. This Court has said repeatedly that limited weight ought be given to the self-serving, untested statements made in a report of a health professional (R v Qutami at 377 [58]-[59], 380 [79]) or in a presentence report (R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [40]-[41]). I do not accept that his Honour determined to put the question of contrition to one side because the Applicant had not given sworn evidence.

15. [99]

    The determination of questions of fact, such as the extent to which remorse has been shown, is quintessentially a task that falls to the sentencing Judge, who is not bound to accept assertions by an offender that he is remorseful, even when the assertion is made in the witness box: Alvares v R at 320 [65].

16. [100]

    The Applicant’s complaint concerning the sentencing Judge’s approach to the confiscation order does not strictly lie within the terms of Ground 3. That said, the Applicant had been literally caught in the act of committing these serious crimes. His preparedness to consent to a confiscation order under the Proceeds of Crime Act 2002 (Cth) did not provide any real assistance to the Applicant on the issue of contrition.

17. [101]

    It was clear that the money did not belong to the Applicant or his co-offenders. This was a good example of the scenario identified by Howie J in R v Ansari at 119 [123] (see [68] above), where a money laundering offender “will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering”. In truth, the Applicant forewent an opportunity to make a hopeless attempt to resist the confiscation of money which was not his. There is very little scope for this scenario to have demonstrated genuine contrition on his part.

18. [102]

    The Applicant’s decision to depart the jurisdiction, whilst the sentencing proceedings were on foot, did not assist him on the question of contrition. The Applicant was fortunate that the sentencing Judge took a relatively benign view of his conduct (see [43] above).

19. [103]

    In my view, this is a case where the approach expressed in Mun v R had particular application. The fact that the Applicant did not give evidence of contrition was a relevant and important aspect bearing upon the exercise of the sentencing discretion. No error has been demonstrated in the approach of the sentencing Judge in this area.

20. [104]

    I would reject the third ground of appeal.

Application of s.6(3) Criminal Appeal Act 1912 (NSW)

1. [105]

   It was submitted for the Applicant that error had been demonstrated and that this Court should proceed to resentence the Applicant and impose a lesser sentence. An affidavit of the Applicant affirmed 12 February 2016 was relied upon for the purpose of resentencing.

2. [106]

   It was submitted that consideration of all factors relevant to sentence, including application of the correct approach to sentencing on Count 2, and the correct approach to determination of the non-parole period, would result in a lesser sentence being imposed upon the Applicant who had, it was submitted, made positive steps towards his rehabilitation in a manner demonstrated in his affidavit of 12 February 2016.

3. [107]

   The Crown submitted that, even if error had been demonstrated, this Court would reach the opinion that no lesser sentence was warranted for the purpose of s.6(3) Criminal Appeal Act 1912 (NSW).

4. [108]

   The Applicant has demonstrated error in accordance with the first and second grounds of appeal.

5. [109]

   Error having been established, this Court is required to exercise its independent sentencing discretion when it resentences the Applicant, in accordance with the principles in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 618-619 [43].

6. [110]

   It is necessary to move to the question of sentence applying the correct approach with respect to areas where error has been established, and having regard to all objective and subjective factors bearing on sentence, including the recent affidavit of the Applicant, together with the provisions of s.16A Crimes Act 1914 (Cth).

7. [111]

   The error in the first ground concerns Count 2 only, while the error in the second ground relates to both Counts 1 and 2.

8. [112]

   The offence in Count 1 was a serious example of a s.400.9(1) crime. The amount of money involved (which was more than 10 times the statutory threshold) reflected the very serious criminal conduct which could reasonably be suspected to be the source of the cash. Added to this were the circumstances in which the Applicant took possession of this very large sum and his dealings with Saleh and others in that respect.

9. [113]

   Whilst the sum of money was just above the statutory threshold, the offence in Count 2 was nevertheless a serious example of a money laundering offence under s.400.3(1)(b)(ii) of the Code. The maximum penalty for such an offence is imprisonment for 25 years.

10. [114]

    The most important consideration on sentence is what the Applicant actually did: R v Ansari at 119 [123]-[124] (see [68] above). The Applicant played a pivotal role in the lead up to the s.400.3(b)(ii) offence, and in its implementation. He took possession of this large sum of money and organised the travel arrangements of the multiple persons who were to carry the money.

11. [115]

    It may be inferred that Saleh provided the substantial sum of $58,660.00 to the Applicant to purchase the multiple airline tickets. Saleh was happy to fund two return first class tickets and five return business class tickets to Dhaka. Clearly, there was no shortage of money available to fund expensive air travel by the carriers as part of this money laundering exercise. The Applicant distributed the money to the various carriers who were to convey it to Bangladesh. He was the point of contact with Saleh, whom he dealt with directly and by telephone. It may be readily inferred that Saleh trusted the Applicant with this very large sum of money. The Applicant’s criminality was significantly greater than that of his co-offenders, who were to be sentenced for lesser offences.

12. [116]

    The understanding of the Applicant as to the purposes for which the money was to become an instrument of crime is a relevant consideration. The fact that the Applicant was involved in dealing with the money, for the intended purpose of breaching the reporting requirements under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), constituted a serious example of a crime of this type. However, this aspect is not decisive of the seriousness of the particular offence or the appropriate penalty: R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370 at 380 [33].

13. [117]

    Whilst the intended use of the money is a circumstance to be considered in assessing the overall conduct of the Applicant, it is not the primary factor. Any focus or regard to the maximum penalty for an intended offence (such as a s.53(1) offence) is likely to distract from consideration of the actual offence, and actual maximum penalty, for which the Applicant is being sentenced: R v Huang; R v Siu at 381 [37]. In setting the maximum penalties for s.400.3 “instrument of crime” offences, the legislature did not fix them by reference to the maximum penalty for the potential subsequent “instrument of crime” offence.

14. [118]

    Money laundering on the scale disclosed in these offences should be considered as serious criminal activity that is at the very heart of organised professional crime syndicates: R v Huang; R v Siu at 381 [36]. The evidence concerning Saleh, the steps taken by him to supply the money to the Applicant and the large expenditure on multiple expensive airline tickets confirms this view.

15. [119]

    The courts have emphasised the important role of general deterrence in sentencing for offences of this type: R v Huang; R v Siu at 381 [36]; R v Guo; R v Qian at 418 [91].

16. [120]

    The Applicant had a prior criminal history, including sentences of imprisonment for computer and dishonesty offences. He had served terms of imprisonment and was not long off parole when he committed these offences. Specific deterrence remains an important factor on sentence in his case.

17. [121]

    I have taken into account the Applicant’s affidavit affirmed 12 February 2016.

18. [122]

    Although the Applicant pleaded guilty at an early time, the plea was in the face of an overwhelming Crown case. His willingness to agree to the confiscation of the sum of money did not provide any real assistance to the Applicant by way of contrition (see [100]-[101] above).

19. [123]

    I will maintain the 25% discount for the Applicant’s pleas of guilty.

20. [124]

    The appropriate course at first instance would have been to fix terms of imprisonment as nominated, but to set a single non-parole period under s.19AB Crimes Act 1914 (Cth), which commenced on 25 July 2014. In approaching the resentencing of the Applicant, I shall proceed in that way.

21. [125]

    Having taken into account all relevant objective and subjective factors, I am satisfied that the sentence on Count 1 should remain a sentence of nine months’ imprisonment. However, it is appropriate to resentence the Applicant on this matter without using the formula of a fixed term of imprisonment.

22. [126]

    I am satisfied that a lesser sentence should be passed on Count 2. That should be, after taking into account the s.53(1) offence, a term of imprisonment of four years and nine months. I am satisfied that the existing degree of accumulation upon the Count 1 sentence should remain, so that the sentence on Count 2 should commence on 25 January 2015.

23. [127]

    In fixing a single non-parole period, I have regard to the need for the minimum term of imprisonment to reflect the objective gravity of the offending, and the need for specific and general deterrence, whilst taking into account, as well, the Applicant’s subjective circumstances including the need for rehabilitation. I am satisfied that the non-parole period to be fixed should be one of three years and six months commencing on 25 July 2014 and expiring on 24 January 2018. The non-parole period will comprise about 62% of the total head sentence.

24. [128]

    The total effective term of imprisonment will comprise a head sentence of five years and three months commencing on 25 July 2014 and expiring on 24 October 2019, with a non-parole period of three years and six months commencing on 25 July 2014 and expiring on 24 January 2018. I am satisfied that this minimum term reflects the minimum period that justice requires that the Applicant should serve in custody for his offences (see [81]-[83] above).

Conclusion

1. [129]

   The Applicant has made good the first and second grounds of appeal, but not the third ground.

2. [130]

   I propose the following orders:

3. [131]

   R A HULME J: I agree with Johnson J.

4. [132]

   DAVIES J: I agree with Johnson J.