SZ (a pseudonym) v R

1. [1]

   ADAMSON JA: I agree with Coleman J and wish only to add a few further remarks. When a further ground is sought to be added, it is desirable that as much notice as possible is given of the new ground. Ground 2 was notified on the eve of the hearing but was conceded by the Crown and could be addressed at the hearing of the appeal by directions for written submissions. Ground 3 arose because Mr Lloyd KC asserted that he did not appreciate that an alleged patent error needs to be included as a separate ground of appeal. He submitted that it was sufficient merely to allege a ground of manifest excess and use that ground to allege any patent error available at the hearing of the appeal which affected the length of the sentence. This course ought not be adopted. It is important as a matter of procedural fairness to the Crown that, if patent error is to be relied upon, it be expressly identified in the notice of appeal in order to afford the Crown an opportunity to respond. Further, it serves to put the Court on notice as to the basis on which a sentence is challenged. While the Court may allow the addition of grounds which are notified late, particularly where the Crown is amenable to that course, the late notification of grounds is disruptive to the administration of justice and to the orderly running of the Court.

2. [2]

   Although the error in ground 2 has been conceded, it does not follow from the ceiling principle, as formulated in Armstrong v R [2015] NSWCCA 273 (that if an applicant is convicted of a lesser offence on a re-trial, the sentence imposed must be concomitantly lesser than that imposed for the more serious offence) that a lesser sentence ought be imposed. This Court is required to resentence in accordance with Kentwell v The Queen (2014) 252 CLR 383; (2014) HCA 37. This requires the Court to exercise the sentencing discretion afresh. Like Coleman J, I would have imposed a higher sentence than the one imposed by the sentencing judge. In these circumstances, and for the reasons given in the authorities cited in RO v R [2019] NSWCCA 183 at [84]-[89] (Beech-Jones J, Bathurst CJ and N Adams J agreeing), it would not be appropriate to reveal the sentence which I would have imposed.

3. [3]

   CHEN J: I agree with Coleman J.

4. [4]

   COLEMAN J: SZ (“the applicant”) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Hock DCJ (“the sentencing judge”) in the District Court at Sydney on 9 August 2024.

5. [5]

   The applicant pleaded guilty to six offences contrary to s 193C(1) of the Crimes Act 1900 (NSW) of dealing with property reasonably suspected of being proceeds of crime. The sentencing judge imposed an aggregate sentence of 4 years and 6 months imprisonment commencing 8 June 2024 and expiring 7 December 2028, with a non-parole period of 2 years and 6 months expiring 7 December 2026. The sentence was backdated to commence on 8 June 2024.

6. [6]

   Originally, one ground of appeal was prosecuted in the Notice of Appeal:

7. [7]

   The day before the appeal was heard, the applicant provided a proposed amended Notice of Appeal which contained an additional ground as ground 2:

8. [8]

   At the hearing of the appeal the Crown did not oppose leave to amend and that leave was granted. Leave was also granted to the Crown to provide a written submission in response to ground 2. Those submissions were received and the Crown accepted that it was open to the Court to conclude that error had been established and that leave should be granted to argue this ground.

9. [9]

   Towards the end of the oral submissions by the applicant at the hearing of the appeal, Senior Counsel made a further application to add a new ground 3 challenging the sentencing judge’s determination of an additional discount to be applied to the sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). This ground was ultimately framed in a further Amended Notice of Appeal provided after the hearing as:

10. [10]

    At the hearing, the actual basis of the challenge to the sentencing judge’s finding that 10% was the appropriate discount was not clear. It was submitted that the discount should have been 15%. Oral submissions were heard in support of the challenge to the sentencing judge’s finding, but the question of leave to argue this point was reserved.

11. [11]

    For the reasons below, I would order that leave be granted to argue grounds 1 and 2. I would refuse leave to argue proposed ground 3. I would order that the appeal be dismissed.

Remarks on sentence (ROS)

1. [12]

   It is first convenient to set out the relevant details of the ROS.

2. [13]

   The sentencing judge summarised the facts as set out in a statement of agreed facts.

3. [14]

   In January 2023 police received information that the applicant had been receiving a large amount of money into his personal bank accounts via structured cash deposits (whereby small deposits are made so as to avoid detection by reason of them being under the amount where mandatory reporting would be required), which was consistent with money laundering activity. Police obtained the applicant’s bank records and identified he had multiple bank accounts with 10 banks. Notices to produce were issued to several of these institutions, requesting bank records, IP log information and CCTV.

4. [15]

   The applicant was living in Bankstown at the time and had two mobile phones registered to his name and address, with the police obtaining telecommunications records for both. These records indicated the location of the applicant’s mobile phones corresponded with the times and locations of the structured deposits which constituted the offences he was eventually charged with. On many occasions, the applicant was also seen on CCTV footage making the deposits at ATMs and Australia Post retail outlets.

5. [16]

   On 10 March 2023, the police were granted telephone intercept warrants which confirmed on some occasions he received text messages confirming the deposits he made. The applicant was also under police surveillance for five days in late February and March 2023, with police observing him attending Australia Post outlets in Regents Park on 7 March 2023, and in Cabramatta on 24 March 2023.

6. [17]

   With respect to the offending itself, her Honour noted that during the period covering each of the six principal offences (sequences 20-25 inclusive), the applicant attended various Suncorp bank ATMs and Australia Post retail outlets and made structured deposits in several accounts.

7. [18]

   Her Honour outlined the offending as follows:

8. [19]

   There were two Form 1’s containing seven additional matters to be taken into account. The first Form 1 contained three charges of dealing with property reasonably suspected of being proceeds of crime under s 193C(2) of the Crimes Act for which the applicant asked to be taken into account for the first offence, sequence 20. The second Form 1 contained two further matters under 193C(2) and two matters under s 193C(1) which were to be taken into account on the fifth offence, sequence 24. The sentencing judge accepted it was appropriate to do so in both cases.

9. [20]

   The facts of those Form 1 matters under s 193C(2) were found to be

10. [21]

    Her Honour outlined the facts surrounding sequences 18 (deal with proceeds of crime ($10,000)) and 19 (deal with proceeds of crime ($14,365)) which arose on the day of the applicant’s arrest, 13 April 2023. These were the two matters under s 193C(1) on the second Form 1 to be taken into account on sequence 24. During the applicant’s arrest at an Australia Post retail store at Cabramatta, officers located $10,000 in cash in two bundles in the applicant’s possession. He told officers the money was from his work at his business. Upon being taken to Fairfield police station he was provided with copies of the Digital Access Orders in relation to his mobile phones and other devices and gave police the necessary passwords. Upon executing a search warrant at the applicant’s premises, police located $14,365 in cash. Police also executed a search warrant on a premises linked to a business registered by the applicant.

11. [22]

    Additionally, Australian Taxation Office (“ATO”) records obtained by police revealed for the 2022/23 financial year, the total sales for the business registered by the applicant were $79,050. For the 2021/22 financial year ATO records indicated the applicant’s gross income was $54,612 and his partner’s was $46,067.

12. [23]

    The sentencing judge noted that the facts of the offending she had outlined revealed the objective gravity of the offences to be extremely serious. Her Honour noted that the authorities made it clear that general deterrence is particularly important for these types of offences.

13. [24]

    The factors relevant to her Honour’s assessment of the objective gravity included the amount of money dealt with, the number of transactions, the period of time over which the transactions occurred, the applicant’s mental state and his role. Her Honour said:

14. [25]

    The sentencing judge found sequence 22 to be the most serious offending given it encompassed 603 structured deposits over nine months, totalling almost $4 million. Her Honour found sequence 20 to be “marginally less serious” as it involved $2,720,105 in 625 structured deposits over a slightly shorter period of seven months. Her Honour noted however that the three Form 1 matters, totalling $154,800, must be reflected in the indicative sentence. Her Honour found the least serious offence to be sequence 25 which involved 39 structured deposits in just over six months, totalling $334,194.90.

15. [26]

    Bearing in mind the threshold for this offence is $100,000, her Honour observed the most serious of the sequences (sequence 22) was more than 39 times that threshold and even the least serious of the sequences (sequence 25) was more than three times the threshold.

16. [27]

    The sentencing judge found the applicant played a significant role personally in making 1,996 deposits. Her Honour took into account the statutory aggravating factors of each of the offences involving a series of criminal acts and them being part of an organised criminal activity.

17. [28]

    Her Honour said the offences were clearly committed for financial gain, a common factor with respect to this sort of offence, but noted no sum was identified in the agreed facts.

18. [29]

    With respect to making findings as to objective gravity her Honour said the following:

19. [30]

    The applicant was 29 years old at the time of sentencing, and his criminal history was limited to two convictions in 2019. These convictions were for dealing with property reasonably suspected of being proceeds of crime, but in that case less than $100,000, and supplying a prohibited drug. The sentence imposed in the Local Court was a Community Correction Order (“CCO”) for 18 months with conditions and supervision.

20. [31]

    Her Honour characterised the development of the applicant’s offending as follows:

21. [32]

    The applicant did not give evidence on sentence but wrote a letter of apology to the Court. Other documents tendered on his behalf were character references provided by his partner and a friend. There was a psychological report and an update prepared by Mr Carlos Camacho and a sentencing assessment report.

22. [33]

    Drawing from this material, her Honour outlined the applicant’s relationship with his partner with whom he shares a child, with another on the way at the time of sentencing. Her Honour noted that the applicant was educated to an HSC level in Vietnam before he migrated to Australia on a student visa, though there was no evidence he completed further study in Australia. He has worked a number of hospitality jobs as well as running a business with his partner.

23. [34]

    As to the report by Mr Camacho, who saw the applicant for a face-to-face consultation on 31 May 2024, and then via AVL on 14 and 27 June, her Honour noted that the psychologist diagnosed the applicant with major depressive disorder. Mr Camacho opined that the applicant’s “decision making during the period may have been influenced by his diagnosed mental health conditions. Financial stress, exacerbated by increased rent and other factors, may have contributed to his involvement in this scheme”.

24. [35]

    As to any causal connection between the applicant’s mental state and the offending her Honour said the following:

25. [36]

    Her Honour noted that the applicant’s disclosure to the psychologist that he received a 0.5% commission from the offending, in the absence of sworn evidence from the applicant, must be treated with caution.

26. [37]

    The sentencing judge considered the applicant’s account for the offending to the psychologist as him being under financial stress provided some explanation but did not excuse his conduct.

27. [38]

    The sentencing judge noted the applicant has engaged in psychological treatment. It was on the basis of this treatment, his letter to the Court, the character references, and the s 23 matters, that her Honour accepted the applicant was remorseful.

28. [39]

    The applicant’s chance of reoffending was classified as reasonably unlikely and his prospects of rehabilitation reasonable.

29. [40]

    Her Honour had regard to the fact that his partner will not have the support of the applicant during her pregnancy and the period following the birth of their second child.

30. [41]

    The sentencing judge made a finding of special circumstances on the basis that the applicant will benefit from having a longer period of supervision on parole than that provided by the usual ratio.

31. [42]

    For the utilitarian value of the pleas of guilty, the applicant’s sentence was reduced by 25%. As a result of the matters set out in confidential Exhibit C and the applicant’s demonstrated willingness to assist with the information assessed to be truthful, complete and reliable (s 23C of the CSPA) her Honour found the applicant to be entitled to a further 10% discount, bringing the total reduction on his sentence to 35%.

32. [43]

    Taking all relevant factors into account, the sentencing judge found no penalty other than imprisonment to be appropriate. Her Honour took into account the 62 days the applicant spent on bail.

33. [44]

    Her Honour noted she had regard to all the purposes of sentencing under s 3A of the CSPA, and that under s 53A of the CSPA an aggregate sentence was to be imposed. Her Honour indicated that had an aggregate sentence not been imposed, there would have been some limited partial accumulation of the sentences given the overlap in dates over the period of May 2022 and April 2023.

34. [45]

    The indicative sentences were as follows:

35. [46]

    Her Honour sentenced the applicant to an aggregate sentence of imprisonment of 4 years and 6 months, commencing on 8 June 2024 and to expire on 7 December 2028. The non-parole period imposed was 2 years and 6 months, with the earliest date on which the applicant is eligible for release to parole being 7 December 2026.

Appeal

1. [47]

   As the Crown has effectively conceded error in respect to ground 2, it is convenient to deal with that ground first.

2. [48]

   This ground asserts that the sentencing judge erred in assessing the objective gravity of the offending by taking into account, to the applicant’s detriment, his state of mind. By doing so, the applicant says her Honour made a De Simoni error: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

3. [49]

   The offences to which the applicant pleaded guilty were each offences under s 193C(1) of the Crimes Act. All of the Form 1 offences were offences under ss 193C(1) or (2). Section 193C relevantly is in the following terms:

4. [50]

   It can be seen that the offence is made out when, relevantly, the person who deals with property with a value of $100,000 or more has “reasonable grounds to suspect” that the property is proceeds of crime. In R v MT [2022] NSWCCA 53 (“MT”), Johnson J said at [112]-[114]:

5. [51]

   It is plain, as the Crown accepts, that in the passage extracted at [24] above, when assessing the objective gravity of the offending her Honour took into account the mental state of the applicant and concluded that he must have been aware of the illegitimate source of the funds. Her Honour erred in so concluding and therefore this ground is made out. It may be that an explanation for the error is that the Crown in its written submissions on sentence emphasised that, together with the amount of money involved, the offender’s state of mind was a principal differentiating factor in determining the objective seriousness of the offending. In making this submission the Crown cited Oliver v R [2020] NSWCCA 26 (“Oliver”). That was a case which concerned an offence under s 400.3 of the Criminal Code (Cth). The authorities referred to in Oliver (at [30]) all deal with offences under that section and state that the objective seriousness of the criminality in that type of offending can be differentiated by the offender’s state of mind (see for example R v Wing Cheong Li [2010] NSWCCA 125; (2010) 202 A Crim R 195 at [25]-[27] and the authorities there cited). As MT makes clear, that is not the position for an offence under s 193C. It is noteworthy that the Crown did not refer the sentencing judge to MT in its submissions on sentence.

6. [52]

   As error has been conceded and established, the applicant must be resentenced unless no lesser sentence is warranted at law: s 6(3) Criminal Appeal Act; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43] (“Kentwell”). For the reasons below, I have concluded that no lesser sentence is warranted at law and there is no need to resentence the applicant. This conclusion means that the applicant’s contention that the sentence is manifestly excessive can also be shortly dealt with.

7. [53]

   The applicant seeks leave to further amend the Notice of Appeal to argue this ground. He asserts that the additional 10% discount on sentence afforded to him pursuant to s 23 of the CSPA was unreasonable. The application to seek leave to add this ground arose in the context of submissions to the Court in the event it found error and moved to resentence the applicant. As I have found error and must consider sentence, it is convenient to deal with this issue now.

8. [54]

   In dealing with the additional discount in the ROS, the sentencing judge concluded that the applicant demonstrated a willingness to assist and the information he provided was assessed as truthful, complete and reliable. Her Honour said the extent of the assistance was significant in that it was not limited to a particular area and was promptly given. Taking into account those and other matters in the information provided, her Honour concluded that 10% was the appropriate discount for the applicant by reason of the assistance provided by him.

9. [55]

   The applicant contended that a 15% discount was warranted. That is because, it was submitted, the applicant provided truthful, voluntary assistance over a lengthy period of time. The Crown submits that the discount given was appropriate when one considered the contents of the confidential information provided. Further, it says in light of the seriousness of the charges to which the applicant pleaded guilty, any higher discount would lead to a lesser sentence that was unreasonably disproportionate to the nature and circumstances of those offences: s 23(3) of the CSPA.

10. [56]

    By reason of the sensitive and confidential nature of the contents of Exhibit C, which I have examined, I will not detail the nature of the assistance given by the applicant argued to warrant the higher discount. Importantly, the applicant does not challenge any of the findings of the sentencing judge with respect to the assistance provided, just the result of her Honour’s conclusion as to the amount of the discount. It is said that the result is “unreasonable”. It is not said that her Honour failed to take into account, or erred in her findings in respect of, the matters to be considered under s 23(2) of the CSPA. The amount of the discount to be applied under s 23, taking into account the matters in s 23(2) and ensuring compliance with s 23(3) is a matter in the discretion of the sentencing judge. As such, it can only be assailed if error of the kind referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505 is identified: R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132 at [60].

11. [57]

    It may be assumed that the applicant’s assertion that the conclusion of the sentencing judge that 10% was the appropriate discount was “unreasonable” is an assertion that there has been a failure by the sentencing judge to properly exercise her discretion in assessing the s 23 discount. However, there have been no submissions as to why this is so, except that on the unchallenged findings of her Honour, she should have concluded that 15% was the appropriate discount. It is not said that she proceeded upon some wrong principle, took into account any irrelevant matters or failed to take into account some other relevant fact. It is simply asserted that a higher discount ought to have been given on the findings made by her Honour. I do not consider that the complaint that her Honour should have assessed the discount at 15% rather than 10% has any merit. No error has been identified by the applicant under this ground. Leave should be refused to argue this ground.

12. [58]

    Having found error in upholding ground 2, the Court must resentence the applicant unless no lesser sentence is warranted at law. For the reasons I will outline below at [61], I have formed the view that no lesser sentence is warranted at law; indeed, I consider a slightly higher sentence is warranted. Having formed that view, it is not necessary to resentence the applicant: Kentwell at [43]. Apart from the matters dealt with below, it is not necessary to deal in great length with ground 1 which asserts that the sentence was manifestly excessive. Having formed the view that no lesser sentence is warranted at law, a fortiori the sentence imposed cannot be manifestly excessive.

13. [59]

    The applicant read an affidavit affirmed by him on 2 October 2025. In that affidavit, he spoke of his partner suffering from depression and being treated whilst she looks after their two children. He speaks of the stress on his partner in operating their business whilst looking after the children without his help. The applicant also deposes to courses and work he has, and is, undertaking in custody. He assists Vietnamese speaking inmates in their communications with their loved ones. He talks of his plans for the future with his partner and his children. It can be accepted that the applicant has engaged well in custody and is moving towards rehabilitation. This accords with the sentencing judge’s findings that he was remorseful, reasonably unlikely to re-offend and had reasonable prospects of rehabilitation. It can also be accepted that the custodial sentence imposed on the applicant has a detrimental impact on his partner and children which was given appropriate weight in the sentence below. Of course, it is inevitable that a custodial sentence such as that faced by the applicant will have an adverse impact on an offender’s family. That is one of the consequences of offending such as this which warrants a significant period of full-time custody.

14. [60]

    As part of the argument that the sentence was manifestly excessive, Senior Counsel for the applicant submitted that error in the aggregate sentence imposed can be discerned in part from her Honour’s approach to the assessment of the objective gravity of the offences. In particular, it was said that her Honour did not make an actual assessment of the objective gravity of sequence 21 yet imposed the same indicative sentence for that sequence as sequences 20 and 22 which were, it was submitted, objectively more serious. Indeed, sequence 22 was said by the sentencing judge to be the most serious of the offences. I do not accept the submissions of the applicant in this regard. In so far as it was suggested that the sentencing judge did not assess the objective gravity of sequence 21, or other sequences her Honour did not specifically mention, that is not correct. The sentencing judge assessed the objective gravity of the offences which were before her Honour for sentence as “extremely serious”: see above at [23] and [29]. True it is her Honour ranked some, but not all of the sequences for comparative purposes. However, I do not accept it is an error of itself or indicates error in either any of the indicative sentences or the aggregate sentence, that her Honour failed to rank every sequence when she had assessed the objective gravity of all of them as “extremely serious”.

15. [61]

    Her Honour’s conclusion as to the extremely serious nature of the offending should be accepted. The applicant was, as her Honour found, engaged in a series of criminal acts as part of an organised criminal activity, an aggravating factor. He was engaged in the offending for financial gain. His offending reflected an escalation of criminal activity, having been sentenced only two years before the index sentence to a CCO for like offending. As her Honour found, he engaged in deliberate and sustained criminal conduct. There is nothing which warranted a reduction in his moral culpability. The sentencing principles of specific and general deterrence play an important role in the sentencing exercise. As does denunciation of the criminality involved. The applicant has been given the necessary discount for his early guilty plea and the appropriate additional discount for his assistance to the authorities. In all of the circumstances, as noted above, and taking into account the purposes of sentencing in s 3A of the CSPA, I would have imposed a slightly higher sentence than her Honour. The result is therefore that there is no need to resentence, and the appeal must be dismissed.

    1. (1)

       Leave to further amend the Notice of Appeal to argue proposed ground 3 is refused.

    2. (2)

       Grant leave to appeal with respect to grounds 1 and 2 against sentence.

    3. (3)

       The appeal is dismissed.