R v MT

1. [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. [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. [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. [4]

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

The Sentences Passed in the District Court

1. [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.

2. [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.

3. [7]

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

4. [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:

5. [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:

6. [10]

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

7. [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

1. [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.

2. [13]

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

3. [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

1. [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.

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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.

8. [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).

9. [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.

10. [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.

11. [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.

12. [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:

13. [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.

14. [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.

15. [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.

16. [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.

17. [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.

18. [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.

19. [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.

20. [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.

21. [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.

22. [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.

23. [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.

24. [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.

25. [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.

26. [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.

27. [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.

28. [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.

29. [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.

30. [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.

31. [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”).

32. [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.

33. [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.

34. [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.

35. [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.

36. [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.

37. [51]

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

38. [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.

39. [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.

40. [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.

41. [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.

42. [56]

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

43. [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”.

44. [58]

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

45. [59]

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

The Sentencing Hearing and Remarks on Sentence

1. [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.

2. [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.

3. [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.

4. [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).

5. [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.

6. [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.

7. [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.

8. [67]

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

9. [68]

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

10. [69]

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

11. [70]

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

12. [71]

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

13. [72]

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

14. [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):

15. [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).

16. [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).

17. [76]

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

18. [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):

19. [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):

20. [79]

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

21. [80]

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

22. [81]

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

23. [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):

24. [83]

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

25. [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

1. [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.

2. [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.

3. [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].

4. [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:

5. [89]

   With respect to these offences, the Crown noted:

6. [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.

7. [91]

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

8. [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.

9. [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.

10. [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.

11. [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.

12. [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.

13. [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].

14. [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.

15. [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].

16. [100]

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

17. [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.

18. [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.

19. [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.

20. [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].

21. [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).

22. [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.

23. [107]

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

24. [108]

    108 Section 193C provides:

25. [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).

26. [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].

27. [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).

28. [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].

29. [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].

30. [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.

31. [115]

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

32. [116]

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

33. [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.

34. [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).

35. [119]

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

36. [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).

37. [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].

38. [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. [123]

    It will be observed that the decision in Subramaniam v R is referred to in JM v R at [39](4) and (6) and [40](1O) and (11). The principles upon which the Crown relies on the present appeal, as stated in Subramaniam v R, constitute part of the accepted framework of principles for aggregate sentencing.

40. [124]

    In Subramaniam v R, Latham J (Simpson J agreeing and Emmett JA agreeing in separate reasons) found error in a case where aggregate sentencing was used for an offender who committed a large number of fraud offences, committed over a five-year period, involving a sum in excess of $45 million. The sentencing Judge grouped the offences according to the bank accounts into which funds were paid and nominated the same indicative sentence of imprisonment for two years and one month for each of the 23 offences with an aggregate sentence of 15 years’ imprisonment with a non-parole period of seven years.

41. [125]

    In upholding a ground of appeal which complained of this approach, Latham J said at [26]-[29], [32] (emphasis added):

42. [126]

    The Respondent relies upon the decisions of this Court in R v Glynatsis and Shi v R. It should be noted that Subramaniam v R was not referred to in Shi v R. Nor was Shi v R or R v Glynatsis referred to in JM v R. The cases referred to in JM v H include Subramaniam v R.

43. [127]

    In Shi vR, the offender was sentenced for 10 money laundering offences under s.400.9(1) Criminal Code (Cth) involving conduct between September and December 2011 and a sum exceeding $38 million. The sentencing Judge imposed identical sentences for each offence even though they involved different amounts of money. In rejecting a ground of appeal complaining about this approach, Bellew J (Leeming JA and Fullerton J agreeing) referred to the decision in R v Glynatsis and continued at [64]-[66]:

44. [128]

    In my view, the approach taken in Subramaniam v R, which has been endorsed in JM v R, is the correct approach to be taken in a case involving rolled-up counts for money laundering offences where, as in the present case, there are very substantial differences between the number of individual transfers, the total amount involved in each count and the average amount per transaction. These are important features to be assessed in determining the objective seriousness of each count. When sentencing for s.193C(1) offences, which involve objective criminality, these factors, together with the actual role of the offender, are likely to be the principal factors which bear upon an assessment of objective gravity.

45. [129]

    In sentencing for an offence, the Court should make an assessment of the objective gravity of each offence, including an assessment of where the offence lies on the spectrum of seriousness for that offence: The Queen v Kilic at [19]; Tepania v R (2018) 275 A Crim R 233; [2018] NJSWCCA 247 at [112]. The sentencing Judge did not make such an assessment in this case with respect to the various s.193C(1) offences.

46. [130]

    I do not consider that what was said in R v Glynatsis and Shi v R authorises the approach taken in the circumstances of the present case. It is not accurate to say that the Respondent’s offending was almost identical in each s.193C(1) offence, this being the finding made in Shi v R at [64] (see [127] above).

47. [131]

    When an aggregate sentence is being utilised, it remains a necessary part of the sentencing process to nominate indicative sentences in accordance with JM v R, with these principles including what was said in Subramaniam v R.

48. [132]

    The use of rolled-up counts may mean that, depending upon the objective gravity of a particular count and the strength of subjective factors to be taken into account as part of the required instinctive synthesis (and before application of any discount), an indicative sentence which approaches the maximum penalty may be appropriate to reflect the heightened objective gravity of the bundle of offences grouped in the rolled-up count. So much is clear from decisions such as R v Beary and Johnston v R.

49. [133]

    There were very substantive differences, in important respects, in the objective criminality of the four s.193C(1) offences in Sequences 5-8 (see [88]-[90] above). The nomination of an identical indicative sentence for each of these four counts is demonstrative of error. The same applies, to a lesser extent, with the s.193C(1) offences in Sequences 9 and 10 (see [91]-[93] above).

50. [134]

    Added to this is the fact that the sentencing Judge did not make findings as to the objective gravity of the s.193C(1) offences in accordance with The Queen v Kilic and Tepania v R. His Honour’s narrative of the offences did not culminate in such findings despite the fact that submissions had been made on this issue.

51. [135]

    The question whether error occurred in the nomination of indicative sentences depends upon consideration of the facts of the case in hand. Having considered the circumstances of this case, I am satisfied that his Honour erred in the approach taken with respect to the nomination of indicative sentences in a way which infringed Subramaniam v R and JM v R. The very substantial differences in the sums of money involved and the number of transfers in each count meant that a assessment” bespeaks error in his Honour’s approach to nomination of the indicative sentences for the s.193C(1) offences.

52. [136]

    It is correct, as Mr Johnston SC submits, that the maximum penalty for each s.193C(1) offence (imprisonment for five years) provides limited room for upward movement in this case. That is a consequence of the decision by the Crown to proceed with rolled-up counts containing very large sums of money and Large numbers of transfers. This discretionary step operated in favour of the Respondent in placing a practical ceiling on the indicative sentence available for each s.1 93C(1) offence.

53. [137]

    However, that aspect should not stand in the way of a proper and more calibrated approach flowing from an assessment of the objective gravity of each rolled-up count, with this approach giving rise, in my view, to the necessity for greater indicative sentences for at least some of the s.193C(1) counts.

54. [138]

    If error was found under this ground, it was submitted for the Respondent that the Crown had not addressed this issue in the District Court in the manner being advanced on appeal to this Court. Although the issue relates more to the discretion to intervene, it is useful to consider that submission in the context of the first ground of appeal.

55. [139]

    The Crown written submissions in the District Court addressed the assessment of the objective gravity of the offences (paragraphs 13-26, 37-39 - AB30I-310). The Crown submitted that the Court should have regard to various factors, including the amount of money involved, the nature, extent and duration of the dealings with the money, the number of persons involved, the Respondent’s role in the joint criminal enterprise and the degree of planning involved. The Crown submitted that, in each of the offences, the amount of money was significant, ranging from $590,970.00 to $33,984,960.00 and totalling more than $103 million. The Crown submitted that the amount of money involved was “substantial and greatly impacts upon the objective gravity of the offences”.

56. [140]

    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.

57. [141]

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

58. [142]

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

59. [143]

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

60. [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).

61. [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).

62. [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.

63. [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.

64. [148]

    I would uphold the first ground of appeal.

65. [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

1. [150]

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

2. [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.

3. [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.

4. [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.

5. [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.

6. [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].

7. [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).

8. [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.

9. [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].

10. [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.

11. [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].

12. [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.

13. [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.

14. [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.

15. [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.

16. [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.

17. [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.

18. [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.

19. [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.

20. [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:

21. [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.

22. [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.

23. [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].

24. [173]

    Other important considerations include:

25. [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.

26. [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.

27. [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.

28. [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.

29. [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.

30. [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.

31. [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.

32. [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

1. [182]

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

2. [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.

3. [184]

   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.

4. [185]

   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.

5. [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.

6. [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.

7. [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.

8. [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.

9. [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].

10. [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.

11. [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].

12. [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.

13. [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.

14. [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.

15. [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.

16. [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.

17. [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.

18. [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.

19. [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.

20. [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.

21. [202]

    I propose that the Crown appeal be dismissed.

22. [203]

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

23. [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.

24. [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.

25. [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.

26. [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.

27. [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.

28. [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

29. [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.

30. [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.