Islam v R

Court of Criminal Appeal (NSW)|2016-02-26|Before: Johnson J, Hulme J, Davies J

Judgment

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

The Charges and Sentences

Following pleas of guilty in the Local Court on 26 June 2013, the Applicant was committed for sentence to the District Court. On 12 June 2014, he appeared before his Honour Judge Blackmore SC on two counts: 1. Count 1 - On or about 1 August 2012 at Mascot, dealing with money reasonably suspected of being the proceeds of crime to the value of $100,000.00 or more, contrary to s.400.9(1) of the Code, for which the maximum penalty was three years' imprisonment or a fine of 180 penalty units ($19,800.00) or both; 2. Count 2 - Between about 31 July 2012 and 1 August 2012, at Mascot and elsewhere in Sydney, dealing with money to the value of $1 million or more intending that the money would become an instrument of crime, contrary to s.400.3(1) of the Code, for which the maximum penalty was 25 years' imprisonment or a fine of 1,500 penalty units ($165,000.00) or both.
In addition to these offences, pursuant to s.16BA Crimes Act 1914 (Cth), the Applicant requested the sentencing Judge to take into account, on sentence for Count 2, a further offence of, on about 1 August 2012 at Mascot, attempting to move physical currency to the value of $10,000.00 or more out of Australia without a report, contrary to s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). If dealt with separately, this offence carried a maximum penalty of two years' imprisonment or a fine of 500 penalty units ($55,000.00) or both.
Sentencing proceedings were conducted before his Honour on 12 June, 31 July, 5 and 8 August 2014. On 8 August 2014, the Applicant was sentenced to the following terms of imprisonment: 1. Count 1 - a fixed term of imprisonment for nine months commencing on 25 July 2014 and expiring on 24 April 2015; 2. Count 2 - taking into account the offence under s.16BA Crimes Act 1914 (Cth), a term of imprisonment for five years and six months commencing on 25 January 2015 and expiring on 24 July 2020, with a non-parole period of three years and six months.
With partial accumulation of the sentence for Count 2, the total effective sentence comprised imprisonment for six years commencing on 25 July 2014 and expiring on 24 July 2020, with a non-parole period of four years commencing on 25 July 2014 and expiring on 24 July 2018.

Grounds of Appeal

The Applicant relies upon three grounds of appeal: 1. Ground 1 - the sentencing Judge erred in his characterisation of the offending namely, the intended use of the money as an "instrument of crime" in Count 2; 2. Ground 2 - the sentencing Judge erred when determining the non-parole period of the total sentence by limiting himself by the application of a presumptive non-parole period; 3. Ground 3 - the sentencing Judge erred by giving no weight to contrition because "that expression is not supported by sworn evidence".

Facts of Offences

A statement of agreed facts was tendered at the sentencing hearing and what follows is drawn from that statement.
On 30 July 2012, police intercepted a telephone call between the Applicant (then 25 years old) and Abu Saleh ("Saleh") in which the Applicant discussed the booking of tickets for flights for himself and others. The conversation was as follows: "APPLICANT: Hey, I'm gonna get my mum and dad in business, and I'm gonna, and all of us are gonna in thing, economy, all right? SALEH: Why? … SALEH: Fly in business, trust me … APPLICANT: They don't wanna (unintelligible). SALEH: No, don't worry about them, tell them it's from us, from the company."
On 31 July 2012, the Applicant purchased from Delight Travel Pty Limited, seven business class tickets, one first class ticket and one first class child ticket to Dhaka, Bangladesh for travel on Singapore Airlines on 1 August 2012. All of the tickets were for return travel. The Applicant paid $58,660.00 in cash for the tickets.
On the evening of 31 July 2012, police observed the Applicant attending an Ashfield address leased by Saleh and leaving a short time later, carrying an open top bag containing a number of packages. The Applicant placed the open top bag in the boot of a Porsche Cayenne. Later on the same evening, police observed the Applicant attend the city office of a solicitor who had previously acted for Saleh, where he collected a black sports bag which had been left there. The Applicant was in possession of each of these bags on 1 August 2012 when he attended the Airport. The open bag and black sports bag each contained a number of coloured Louis Vuitton and Gucci cotton shoe bags ("the shoe bags").
At about 9.30 am on 1 August 2012, the Applicant attended the Sydney International Airport at Mascot with his co-offenders, Cheuk Fai Chan ("Chan") and Andrew Almada ("Almada") and met with a group of seven other travellers, including the Applicant's father and several members of his family. The Applicant and his companions were scheduled to depart on a Singapore Airlines flight to Dhaka, Bangladesh later that day.
The Applicant was carrying the open top bag and the black sports bag which contained the shoe bags.
Shortly after the Applicant met the group, the following took place: 1. Chan rearranged the contents of the open top bag containing the shoe bags; 2. the Applicant removed a shoe bag from the black sports bag and placed the shoe bag into Almada's suitcase, which Almada had opened - Almada then closed his suitcase; 3. the Applicant removed two shoe bags from the black sports bag and approached the Applicant's father who opened his suitcase - the Applicant placed the shoe bags underneath some items in the suitcase - the Applicant's father then rearranged items in his suitcase to allow the suitcase to close; 4. the Applicant removed a shoe bag from the black sports bag and approach Almada who opened his suitcase - the Applicant put the shoe bag in Almada's suitcase - Almada then closed his suitcase.
After checking in for their flight, the Applicant and his fellow travellers attempted to pass through Customs. The Applicant, his father, Almada and Chan had each completed and presented outgoing passenger cards on which they had declared that they were not taking more than AUD$10,000.00 out of Australia. The group was selected for a 100% baggage check of their checked-in suitcases. They were escorted to the Customs outwards examination area and their checked-in suitcases were retrieved to conduct a baggage check.
After being selected for the baggage search, the Applicant made a telephone call to Saleh at about 10.30 am. Clearly, the two men were concerned. The conversation was as follows: "APPLICANT: Something happened about the goods. SALEH: What happened? APPLICANT: About the money. SALEH: Have they got the money? APPLICANT: They are scanning the bag. SALEH: Is it? APPLICANT: Yes. SALEH: Fuck. APPLICANT: I'm waiting here, everybody is here as well. SALEH: Have the police arrived? APPLICANT: No. SALEH: Is it a big problem? [END OF CALL]"
During the baggage examination process, the Applicant identified three suitcases that belonged to him and confirmed that he had packed the bags and was aware of their contents. When asked about the contents, the Applicant advised Customs that he had "just over $10,000.00" with him. Customs officers then searched the Applicant's luggage and located AUD$359,650.00 in $50.00 and $100.00 denominations hidden inside two shoe bags.
After the money had been located, the Applicant informed Customs officers that he had also put money in the suitcases of his father, Chan and Almada. Customs officers searched the suitcases of the other travellers and located: 1. AUD$204,450.00 hidden in two shoe bags inside the Applicant's father's suitcase; 2. AUD$249,600.00 hidden inside five shoe bags in Chan's suitcase; and 3. AUD$210,200.00 hidden in two designer bags inside Almada's suitcase and a further AUD$5,650.00 in a shoulder bag.
The total amount of cash hidden inside the suitcases was AUD$1,023,900.00. When spoken to by Customs, the Applicant declared that the money was his and that he had packed it in the bags of the others.
Following his arrest on 1 August 2012, the Applicant spent eight days in custody before his release on bail on 8 August 2012.
Department of Immigration and Citizenship records showed that the Applicant, Almada and Chan had travelled to Singapore together in May 2012.
The Applicant had not lodged a tax return since 2006. He had been in receipt of Newstart Allowance for the following periods: 1. between January 2008 and February 2008; 2. between August 2009 and March 2010; and 3. between September 2011 and December 2011.
In his outgoing passenger card completed on 1 August 2012, the Applicant indicated that his occupation was "student".

Course of Proceedings in the District Court

The sentencing hearing commenced in the Sydney District Court on 12 June 2014. On that date, the hearing was adjourned for sentence to 31 July 2014 and the Applicant's bail was continued. Conditions of his bail included surrender of his passport and not to leave Australia or approach any points of international departure from Australia.
On 13 June 2014, the Applicant breached his bail by leaving Australia and travelling to Bangladesh, using a New Zealand passport of which Australian authorities were unaware. The Applicant was in Bangladesh between 14-16 June, then Bangkok from 16 June to 1 July, then Singapore from 1 July to 18 July, then Bangladesh again from 18 to 30 July, then Bangkok again from 31 July to 2 August before he returned to Australia on 3 August 2014.
On 31 July 2014, the proceedings were adjourned until 8 August 2014 and a bench warrant issued.
Upon his return to Australia on 3 August 2014, the Applicant was arrested at Brisbane Airport under the bench warrant and he remained in custody until he was sentenced on 8 August 2014.

The Applicant's Subjective Circumstances

The Applicant was born in 1986. He was 25 years old at the time of the offences and 28 years of age at the time of sentence.
A presentence report and a report of Michelle Player, clinical psychologist, dated 17 September 2013 were before the sentencing court.
The Applicant did not give evidence at the sentencing hearing.
The reports indicated that the Applicant was born in Bangladesh and came to Australia, via New Zealand, in 1997. According to the presentence report, the Applicant had a normal upbringing and described his parents as supportive. He completed his Higher School Certificate in 2004 and had undertaken studies in business administration, accounting and real estate although he had not completed these courses. He informed the author of the presentence report that he had been employed for 18 months up to November 2013 by a real estate agency on a retainer and commission basis.
The Applicant informed the author of the presentence report that he had been using the drug "Ice" in a six-month period prior to his arrest. He claimed that he had been in debt to his drug dealer to the amount of $6,000.00 - $7,000.00 and that this was his motivation for becoming involved in the offences.
The Applicant has a criminal history in New South Wales extending back to 2005. He committed five offences of driving whilst suspended or driving whilst disqualified in 2005. Further offences of driving whilst disqualified were committed in 2007 and 2009. For the 2009 offence, he was sentenced to six months' imprisonment.
In 2008, the Applicant was sentenced to terms of imprisonment for a computer offence under s.308C Crimes Act 1900 (NSW) (causing an unauthorised computer function with intent to commit a serious indictable offence) and an offence of obtaining money by deception. The convictions and sentences were confirmed on appeal to the Sydney District Court.
In 2010, the Applicant was sentenced to an effective term of 18 months' imprisonment for further s.308C offences and offences of obtaining money by deception. An appeal to the District Court against conviction and sentence was dismissed in June 2010.
The presentence report indicated that the Applicant came to the attention of the Probation and Parole Service in 2005, when he was sentenced by way of good behaviour bonds for offences of driving whilst suspended. He came to the attention of the Service again in July 2007 as a result of sentences by way of community service orders for offences of dishonesty. The Applicant's performance on those orders was unsatisfactory.
In 2009, he was supervised for a short period whilst on parole and was subject to parole again between September 2011 and May 2012.
Accordingly, the present offences were committed some three months after the Applicant had completed a period of parole.

The Applicant's Co-Offenders

The co-offenders, Almada and Chan, were also sentenced by his Honour Judge Blackmore SC on 8 August 2014. Each of them pleaded guilty to one count of dealing with money reasonably suspected of being proceeds of crime to the value of $100,000.00 or more, contrary to s.400.9(1) of the Code. Each of Almada and Chan requested the sentencing Judge to take into account, under s.16BA Crimes Act 1914 (Cth), a further offence of attempting to move physical currency to the value of $10,000.00 or more out of Australia without a report, contrary to s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
Chan was sentenced to 12 months' imprisonment with a direction that he be released at the expiration of four months, upon entering into a recognisance under s.20(1)(b) Crimes Act 1914 (Cth) to be of good behaviour for three years.
Almada was sentenced to 18 months' imprisonment with a direction that he be released at the expiration of nine months, upon entering into a recognisance under s.20(1)(b) to be of good behaviour for three years.

Some Findings of the Sentencing Judge

Before moving to the grounds of appeal, it is appropriate to set out a number of findings by the sentencing Judge, some of which give rise to grounds of appeal.
The sentencing Judge undertook an assessment of the seriousness of the Applicant's offences (relevant to the first ground) (AB40-41) (emphasis added): "The offences committed by Islam are clearly extremely serious. They involve a penalty that is the second highest provided under the Commonwealth law. Moreover, this offence is particularly serious as he organised and involved the other offenders and additional third parties. There is no actual evidence as to what purpose the offender Islam had in mind when he attempted to export this large amount of money, but I am satisfied that the money would have become an instrument of crime. The offender Islam's role is clearly the most significant of the three offenders. The evidence does not allow for a finding that he was the owner of the money. He appears to have received the money on the evening before he intended to travel. Having said that, if he was not the owner of the money, he was at the very least a highly trusted associate of the owner or owners. Further, this offender was involved in obtaining travel documents for the other offenders which indicates his close involvement with the offence. Most criminal activity has at its heart the desire to obtain money. Money is used to obtain illegal items that can later be obtained and imported and sold at extreme profits such as drugs, or the money might have been used in some other serious criminal activities such as terrorism. As I have indicated, there is no actual evidence as to the intended use of the money. However, when an offender is detected dealing with such extremely large amounts of cash, the sentence imposed must attempt to deter other similarly minded and tempted individuals. In my view the only penalty available in this case is a lengthy term of imprisonment. The evidence suggests that the other two offenders were recruited by Islam. Almada appears to be more heavily involved based on the facts. Clearly the other two were aware of the nature of their offending. They were assisting Islam to carry out a very serious offence allowing his transfer [of] over one million dollars from the country for use in criminal activity. There is no evidence that they were all aware of the purpose that Islam may have had for the transfer of money. However, the very large amounts of money involved in these cases require a sentence that reflects general deterrence in each case. The only appropriate sentence is one of full time custody in each case."
With respect to the Applicant's background and subjective circumstances, his Honour said (relevant to the third ground) (AB41-43) (emphasis added): "Mr Islam has a relatively serious prior criminal history. He has spent periods in custody for offences of fraud and other offences. He is not entitled to any particular leniency as a result of his prior record. Both of the offenders, Almada and Chan, also have criminal records, although not nearly as significant as that of the offender Islam. Neither offender could be described as a person of prior good character, but their records are such that it is clear that they have not previously been involved in criminal activity of this level of seriousness. In my view that should result in some leniency being applied on sentence in each case. Mr Islam is still a relatively young man. He only arrived in Australia in 1997 and since then he has obtained a serious criminal history. In recent time he has been working as a salesman, and according to the information provided to the Probation Service he has been quite successful in that role. His motivation for committing this offence was said to be to pay off a substantial drug debt. He said that he had been using the drug ice for up to six months prior to the offence and that he was not thinking straight at the time that he committed this offence. Accepting that this is true, it is no excuse for committing such a serious offence. Having said that, if the offender is able to avoid further drug use, his consistent recent work history does show that he has some prospects of rehabilitation. The Crown has submitted that the offender has shown scant contrition and remorse for his actions. Obviously he has pleaded guilty, that is capable of being viewed as an expression of contrition, but he did not give evidence about his contrition and consequently that expression is not supported by sworn evidence. Moreover after granting him bail following the sentencing hearing the offender left the jurisdiction to apparently visit Bangladesh. He did that in breach of his set bail conditions. He did that using a passport that he held from New Zealand. It was a passport that the authorities were not aware of. He [sic] behaviour in leaving the jurisdiction is said by the Crown to show a continuing attitude of disobedience to the law. On the other hand he did return to Australia even though he must have realised that he was facing a period in full time custody. That shows in my view that he is prepared to facilitate justice. On balance in my view his departure from the country contrary to his bail conditions, whilst unlawful, has only minor relevance."
His Honour found that the Applicant was "the principal offender of the three" (AB43).
The sentencing Judge addressed the timing of the pleas of guilty, the Applicant's willingness to consent to a confiscation order and the determination of the non-parole period for the Applicant (relevant to the second and third grounds) (AB44-45) (emphasis added): "The offences here were very serious. Each of the offenders has pleaded guilty at the first reasonable opportunity. They are entitled to a significant discount upon the sentence that might otherwise have been set, which I will provide at a rate of 25%. That is to acknowledge their willingness to facilitate justice. I note an acknowledgement by each offender that they will not oppose an order for confiscation of the money. I also note that that is relied [upon] as some form of assistance to authorities. Given the fact that each of the offenders was caught red-handed with this money without any reasonable explanation as to how they came to have it, the cases against them were overwhelming. It seems difficult in the circumstances to see how they could have legitimately objected [to] an order forfeiting the money to the Commonwealth. Inasmuch as they have consented to the order it also has facilitated justice and I will take it into account on the sentence, but it cannot be regarded as a significant mitigating factor in my view. In relation to the offender Islam I note the suggestion that special circumstances should be applied in his case. These are Commonwealth charges. The usual ratio apply in such charges, already allows for a significantly reduced period of custody vis-à-vis the total sentence. In my view no additional reduction is required."

Ground 1 - Suggested Error in Characterisation of the Offending on Count 2 The Applicant's Submissions

Mr Game SC, for the Applicant, submitted that the "dealing" with respect to each count was possession of the money. In respect of Count 2, the dealing (possession) must be done with a particular intention in relation to some future activity: Milne v The Queen [2014] HCA 4; 252 CLR 149 at 164 [37]. He submitted that the nature of the intended future criminal use of the money was clearly relevant to the criminality involved in the offending.
It was submitted that the sentencing Judge considered that the element of "instrument of crime" consisted of the future use of the money overseas in some "criminal activity". The Applicant submitted that this was not the gravamen of the offence, nor was it permissible to sentence on this basis.
Although neither the charge nor the agreed facts indicated without doubt what the intended use of the money was, the Applicant submitted that the Crown submissions in the District Court had stated that the future intended use of the money, as an "instrument of crime", was the removal of the funds from Australia without report contrary to s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
Mr Game SC submitted that the sentencing Judge's speculative consideration of the future use of the money contemplated criminality significantly worse than that encompassed in the plea and the case alleged by the Crown. In this way, it was submitted that his Honour had fallen into error. Crown Submissions
The Crown submitted that the impugned sentencing remarks did not compel a conclusion that his Honour sentenced the Applicant on Count 2 with respect to criminality that was significantly worse than that encompassed by the plea in the case alleged by the Crown.
The Crown submitted that the gravamen of the offence is the present dealing with money or other property, accompanied by an intention to use that money or property in future criminal activity. The Applicant had pleaded guilty to an unparticularised offence of dealing with more than $1 million, intending that the money would become an instrument of crime.
It was acknowledged that, in submissions before the District Court, the Crown had identified the predicate offence as being breaches of the reporting requirements under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). It was submitted that, if his Honour's finding that he was satisfied the money would become an instrument of crime was a reference to a s.53 offence, it was uncontroversial.
Even if his Honour's remarks were to be construed as a reference to an unspecified potential intended use to be made of the money in the event that it had been successfully smuggled out of the country by the Applicant, the Crown submitted that his Honour's remarks did not demonstrate error. His Honour had noted, on a number of occasions, that the evidence was not capable of establishing the particular purpose or intended use for the money.
Consequently, it was submitted that his Honour's finding was neutral, and was simply a finding that the Court was satisfied that the money the Applicant dealt with possessed the necessary character required by the offence provisions. It was submitted that his Honour's remarks are not capable of being viewed as a finding that aggravated the seriousness of the Applicant's offence.
The Crown submitted that it was pertinent to note that the sentencing Judge had made no finding that the money was to be used for any particular future crime or purpose, and made no finding that the Applicant himself was aware of any such purpose. Such findings may have constituted aggravating factors or have been capable of affecting the objective seriousness of the offence. The Crown submitted, however, that his Honour's findings did not operate in this way. Decision
An offence under s.400.9(1) of the Code (such as Count 1) relates to past use of money or property valued at $100,000.00 or more - is it reasonable to suspect that the money or property (dealt with by the offender) is the proceeds of crime?
A s.400.3(1)(b)(ii) offence (such as Count 2), on the other hand, concerns the future use of money or property valued at $1,000,000.00 or more - does the person (who deals with the property) intend that the money or property will become an instrument of crime?
The first count involved an offence under s.400.9(1) of the Code which provides: "Dealing with property reasonably suspected of being proceeds of crime etc. (1) A person commits an offence if: (a) the person deals with money or other property; and (b) it is reasonable to suspect that the money or property is proceeds of crime; and (c) at the time of the dealing, the value of the money and other property is $100,000 or more."
The second count involved a charge under s.400.3(1) of the Code which states: "Dealing in proceeds of crime etc - money or property worth $1,000,000 or more (1) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is, and the person believes it to be, proceeds of crime; or (ii) the person intends that the money or property will become an instrument of crime; and (c) at the time of the dealing, the value of the money and other property is $1,000,000 or more."
The term "deals with money or other property" is defined in s.400.2 of the Code: "A person deals with money or other property if the person does any of the following: (a) receives, possesses, conceals or disposes of money or other property, (b) imports money or other property into Australia, (c) exports money or other property from Australia; (d) engages in a banking transaction relating to money or other property."
Section 400.1(1) of the Code defines "proceeds of crime" (relevant to Count 1): "proceeds of crime means any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)."
Section 400.1(1) of the Code defines "instrument of crime" (relevant to Count 2): "Money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even it if may, in some circumstances, be dealt with as a summary offence)."
Finally, it is appropriate to set out the terms of s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (the offence to be taken into account on sentence for Count 2): "Reports about movements of physical currency into or out of Australia 53 (1) Offence A person commits an offence if: (a) either: (i) the person moves physical currency into Australia; or (ii) the person moves physical currency out of Australia; and (b) the total amount of the physical currency is not less than $10,000; and (c) a report in respect of the movement has not been given in accordance with this section. Penalty: Imprisonment for 2 years or 500 penalty units, or both."
The breadth of conduct covered by money laundering offences in Pt 10.2 of the Code has been emphasised: R v Guo; R v Qian [2010] NSWCCA 170; 201 A Crim R 403 at 414 [84]. The broad definitions of "deals with money or other property", "proceeds of crime" and "instrument of crime" serve to explain the breadth of conduct involved in money laundering offences.
In R v Ansari [2007] NSWCCA 204; 70 NSWLR 89, Howie J said at 118 [119]: "The offences within the Division, therefore, apply to a large range of activity in relation to money or other property to be used in connection with, or arising from, serious crime. Not only is there a very wide ambit in relation to the conduct caught by the offences but there is also a substantial range of criminal activity to which the money or property could relate, being limited in effect to an indictable offence of the Commonwealth or a State or Territory. The offences are not concerned only with the source of the money or property that is dealt with but also its ultimate use. The offences cover money obtained illegally or to be used for illegal purposes or dealt with in a manner that is illegal."
The proper construction of s.400.3(1)(b)(ii) of the Code was considered by the High Court of Australia in Milne v The Queen. The Court (French CJ, Hayne, Bell, Gageler and Keane JJ) said at 163 [33] (footnotes omitted): "For property to become an instrument of crime within the meaning of s 400.3(1) it must be 'used'. An ordinary meaning of the verb 'use' is '[t]o make use of (some immaterial thing) as a means or instrument; to employ for a certain end or purpose.' That is the relevant ordinary meaning for the definition of 'become an instrument of crime' which involves the 'use' of property to serve a purpose, namely the 'commission of an offence' or 'to facilitate the commission of an offence'. The relevant ordinary meaning of 'facilitate' in this case is '[t]o render easier the performance of (an action), the attainment of (a result); to afford facilities for, promote, help forward (an action or process)."
The High Court returned to the definition of "instrument of crime" in Milne v The Queen at 164 [37]: "The definition of 'instrument of crime' and the deployment of that term in s 400.3(1)(b)(ii) require a temporal separation between the requisite dealing and the intended use of the property. They also require an instrumental connection between the intended use of property and the commission or facilitation of the commission of an offence. Conduct involving property which is no more than a necessary condition of the commission of a subsequent offence does not on that account amount to the use of the property in or to facilitate the commission of that offence. Nor is the instrumental connection demonstrated merely by an intention to take advantage of circumstances arising after and as a result of the requisite dealing."
In R v Ansari, Howie J, at 118-119 [120]-[124], referred to circumstances where the origin of money or property, or its intended criminal use, may not be identified: "120 With offences that are so wide ranging in their scope it becomes somewhat difficult to imagine an offence falling within the worst category of its kind against which any particular offence can be measured. It might be thought that dealing with money that is to be used for the purposes of terrorism might be within the class of the most serious offences encompassed by the sections in the Division. But it is perhaps not so difficult to conceive of offences that will form the bulk of conduct falling within the scope of the Division that would come before the criminal courts. The most obvious will relate to money obtained as a result of drug activity and that is being dealt with in order to make it more difficult to track or identify as the proceeds of a particular crime. It may also be money that has been legitimately earned but is to be dealt with in such a way as to disguise its source in order, for example, to defraud the taxation office. 121 But frequently it will be impossible for the authorities to identify the origins of the funds or what is ultimately to be the use made of them, yet it can be shown that the manner of dealing with them was a breach of the law, such as to avoid the mandatory reporting conditions under the Financial Transactions Reporting Act. It may be the case that the persons dealing with the money do not know its source or ultimate destination and do not care provided they are being paid for rendering a service. 122 The legislation itself has attempted to structure offences to give some guidance as to the seriousness of the conduct by reference to the applicable maximum penalty for each offence. The scheme is that the greater the sum of money involved, the more serious the offence. But the legislation also takes into account the mental state of the offender, so that an offence involving the intentional dealing with proceeds of crime or instruments of crime is more serious than one where the state of mind is recklessness as to the criminal nature of the property. Therefore s 400.3(1), where the amount involved is more than a million dollars and where the offender believes that the property is the proceeds of crime or intends that it will become an instrument of crime, provides for the most serious of the money laundering offences carrying a maximum penalty of imprisonment for 25 years and/or 1500 penalty units. 123 It is likely that an offender before the court for sentencing for an offence within the Division will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering. The prosecution may not be able to show that the offender knew of the source of the money or its ultimate destination. In Assafiri v R [2007] NSWCCA 159 an analogy was drawn between money laundering offences and drug importations in that both types of offences usually reveal a hierarchy of persons involved in the conduct who have different roles to play and different gains to be made from the commission of the crime. The most important consideration in sentencing an offender for an offence under this Division will be to consider what the offender did, because there may be little or no evidence before the court as to the organisation behind the offence, the source of the funds or the ultimate use to made of them: see R v Olbrich (1999) 199 CLR 270 at [19]. 124 However according to normal sentencing principles, if the Crown wants to submit that the particular offence is aggravated by a circumstance that makes it more serious than objectively it would appear to be from the bare conduct of the offender, for example because the money with which the offender dealt was known by him to be intended to support terrorism, then the Crown should prove that fact beyond reasonable doubt. On the other hand, if the offender seeks to mitigate the seriousness of the apparent conduct by some fact, for example that the offender believed the funds were to be used for a humanitarian purpose, then it would fall to the offender to prove that fact on the balance of probabilities. Where however the accused denies the offence or there is no evidence as to his state of knowledge of the source of the funds, the purpose of dealing with the funds or their ultimate destination, the Court must simply deal with the matter on the objective facts as proved by the evidence. That was the case here. The Judge was not required to find facts that were most favourable to the appellants."
During the course of oral submissions at the sentencing hearing, the Crown made clear that the intended offence as an "instrument of crime" in Count 2 was the breach of reporting requirements under s.53(1). It appears from the following exchange that the sentencing Judge had in mind factors of the type referred to by Howie J in R v Ansari (at [68] above). The Crown made clear, however, the limited way in which it put its case on the s.400.3(1)(b)(ii) count (AB21): "HIS HONOUR: Which does - you know it's always interesting, what other factors that would justify the maximum and then you look at what people are actually getting. NEILD: Yes. I suppose the nature of the predicate offence may be something. I mean this is an offence that's obviously very commonly committed in these circumstances where it's the breach of the reporting requirement that's the predicate offence and I suppose it's - you know if someone were to be financing with a million dollars some dreadful act of terror or something like that that would clearly be more serious than this, in my respectful submission. HIS HONOUR: Well let's just turn to the actual elements of the offence though. 'Intending the money would become an instrument of crime'. You don't have any precise evidence about what crime you're just saying that it's-- NEILD: That's right, so perhaps if there were in this case-- HIS HONOUR: The inference is obvious that it must be some crime but you can't say exactly what. NEILD: Yes. Well in this case it's the breach of the reporting requirements that's the way in which it's going to become an instrument of crime and in that sense I suppose that is a, obviously in terms of the maximum penalty amongst other factors, a less serious offence than others that might be contemplated. And also then I suppose there may be factors-- HIS HONOUR: So if for example you had evidence that the million dollars was to be used to buy a quantity of drugs in Nigeria - a huge quantity of drugs, to ultimately be imported back into Australia and then you would have some additional evidence to request a maximum-- NEILD: Yes, thinking as I go I think that's the sort of situation that could comfortably be described as being more serious than this your Honour but certainly with respect I would say this comfortably falls well above the lower end of the scale, even though it does barely pass the million dollar mark."
This approach was confirmed in the Crown's written submissions before the District Court (AB93): "The offender's criminality is of a high order. He was responsible for dealing with over $1 million in cash intending that the money would become an instrument of crime, namely offences against s 53 of the Anti-Money Laundering and Counter Terrorism Financing Act. The offence against s 400.3(1) was calculated, involving planning and the intended use of third parties. The purpose of the offence was to have a very significant amount of cash, the source of which is unknown, unlawfully removed from Australia."
This submission was repeated elsewhere in the Crown's written submissions before the sentencing Judge concerning the s.400.3(1)(b)(ii) offence (AB96): "The Offender's criminality is significant. The Offender's conduct involved first the possession of money which can reasonably be suspected as being the proceeds of crime and secondly, the dealing in money where it is intended that the money will become an instrument of crime, namely removal of the funds from Australia without report."
This was not a case, of the type referred to by Howie J in R v Ansari (see [68] above), where it was necessary for the sentencing court to consider the nature of intended use of the money as an instrument of crime. Here, the Crown adopted the approach, perhaps generously to the Applicant, that the intended use of the money so as to become an instrument of crime related to breaches of the reporting requirement in s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The Crown did not put its case on this aspect by reference to what may be done with the money once it reached Bangladesh.
The Crown having put its case in this way, it was not open to the sentencing Judge to approach the element of intention that the money will become an instrument of crime upon the basis that the Applicant was carrying out "a very serious offence allowing his transfer [of] over one million dollars from the country for use in criminal activity" (see [42] above).
I accept the Applicant's submission that his Honour's finding on this aspect was based upon the intended use of the money for a more serious unidentified criminal purpose than that which the Crown had relied upon at the sentencing hearing. In this way, the sentencing Judge has fallen into error in a manner which operated adversely to the Applicant.
I am satisfied that the first ground of appeal has been made good.

Ground 2 - Suggested Error in Determination of the Non-Parole Period Component of the Total Sentence by the Application of a Presumptive Non-Parole Period The Applicant's Submissions

Mr Game SC submitted that the sentencing Judge had fallen into error in stating that the "usual ratio" applied in the determination of the non-parole period for Commonwealth offences and that "no additional reduction is required". It was submitted that this approach was inconsistent with the proper exercise of sentencing discretion for Commonwealth offences, including the determination of the non-parole period: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 534 [44]. Crown Submissions
The Crown conceded that the sentencing Judge had fallen into error in the manner identified in the second ground.
However, the Crown submitted that the Court would conclude, in any event, that no lesser sentence was warranted under s.6(3) Criminal Appeal Act 1912 (NSW). Decision
His Honour was not assisted on this question by a submission for the Applicant which sought (wrongly) to apply the "special circumstances" formula in s.44 Crimes (Sentencing Procedure) Act 1999 (NSW) to Commonwealth offences (see [45] above).
However, I am satisfied that the sentencing Judge fell into error in approaching the determination of the non-parole period by reference to the "usual ratio", and the conclusion by his Honour that "no additional reduction is required" (see [45] above).
The High Court made clear in Hili v The Queen, at 526 [13], 532-533 [37]-[38], that there is no judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve, prior to release on parole. Part 1B of the Crimes Act 1914 (Cth) makes exhaustive provision for fixing non-parole periods for federal offenders: Hili v The Queen at 527-528 [22].
A sentencing Judge should determine the length of sentence to be served before release on parole by reference to, and application of, s.16A Crimes Act 1914 (Cth) and the principles identified in Power v The Queen [1974] HCA 26; 131 CLR 623; Deakin v The Queen [1984] HCA 31; 58 ALJR 367 and Bugmy v The Queen [1990] HCA 18; 169 CLR 525: Hili v The Queen at 533 [40]. A critical consideration is the determination of the period of imprisonment that justice requires an offender must serve in custody: Hili v The Queen at 533 [41]. The non-parole period is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender's subjective circumstances: Power v The Queen at 627-629. The risk of reoffending is a relevant factor in setting the minimum term: Bugmy v The Queen at 537.
In Hili v The Queen at 533 [41], the High Court said that the necessary deterrent and punitive effects of sentences for serious tax frauds must be reflected in both the head sentence and the minimum term. The same may be said with respect to serious money laundering offences as seen in the present case.
Error has been demonstrated in accordance with the second ground of appeal.

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

The Applicant submitted that the sentencing Judge had fallen into error in his approach to contrition, by treating the Applicant's failure to give sworn evidence as being a decisive factor (see [43] above).
Although this aspect may have been of particular significance on sentence for a State offence (s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW)), it was submitted that there is no equivalent provision in Commonwealth legislation. Section 16A(2)(f) Crimes Act 1914 (Cth) requires a sentencing court to take into account the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner.
Reference was made to the statement by the author of the presentence report that the Applicant "expressed regret for involving family members and others in his offending" (AB71). It was noted, as well, that the clinical psychologist, Ms Player, had stated that the Applicant "expressed remorse for his involvement in his offending" (AB85).
It was submitted further that the Applicant had consented to an order for forfeiture under the Proceeds of Crime Act 2002 (Cth) and had been provided with a letter from the Australian Federal Police to this effect. Although his Honour took account of this as illustrating the Applicant's willingness to facilitate the course of justice, it was submitted that it was also capable of evidencing remorse.
The Applicant submitted that, under federal sentencing legislation, where an offender provides co-operation regarding a confiscation order, it may evidence contrition and remorse: s.16A(2)(f) Crimes Act 1914 (Cth); s.320 Proceeds of Crime Act 2002 (Cth); Stock v R [2011] NSWCCA 49 at [36]; McMahon v R [2011] NSWCCA 147 at [72].
The Applicant submitted that error had been demonstrated in accordance with this ground of appeal. Crown Submissions
The Crown submitted that the Applicant bore the onus of satisfying the sentencing court, to the civil standard, that he was contrite for his offending. His Honour was not bound to give weight to, or even accept, the various expressions of remorse relied upon by the Applicant.
The Crown submitted that the fact that s.16A(2)(f) Crimes Act 1914 (Cth) is not expressed in the same terms as s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW) had no significance, as this Court has said that a sentencing Judge is not bound to give weight to suggested expressions of remorse contained in third-party reports: R v Qutami [2001] NSWCCA 353; 127 A Crim R 367.
The Crown submitted that the expressions of contrition contained in the presentence report and psychological report were unpersuasive expressions of any real contrition. The Crown pointed, as well, to the Applicant's departure from Australia whilst awaiting sentence, with him travelling to Bangladesh on a New Zealand passport, and remaining absent and in breach of his bail until he chose to return some weeks later.
The Crown submitted that the sentencing Judge had taken into account the Applicant's consent to forfeiture of the money that he and others had been in possession of when arrested at the Airport. The Crown submitted that his Honour had rightly observed that this was a matter of little weight and was not a matter that demonstrated contrition to any significant degree, if at all. Decision
This Court has observed that the assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction: Mun v R [2015] NSWCCA 234 at [29]. Further, it has been emphasised that considerable caution must be exercised in determining what weight, if any, can be placed upon self-serving and untested statements by an offender contained in a report of a health professional: Mun v R at [40].
It has been said that remorse means regret for the wrongdoing which the offender's actions have caused because it can be safely assumed that an offender will always regret the fact of apprehension: Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 at 313 [44].
I do not consider that the sentencing Judge erred in taking into account the absence of evidence from the Applicant on the question of contrition and remorse. His Honour did not purport to apply s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW). Rather, his Honour had regard to all matters that were capable of shedding light upon the existence of genuine contrition and remorse, as to which the Applicant bore the onus of proof to the civil standard.
The sentencing Judge was entitled to have regard to the absence of sworn evidence from the Applicant concerning contrition. This Court has said repeatedly that limited weight ought be given to the self-serving, untested statements made in a report of a health professional (R v Qutami at 377 [58]-[59], 380 [79]) or in a presentence report (R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [40]-[41]). I do not accept that his Honour determined to put the question of contrition to one side because the Applicant had not given sworn evidence.
The determination of questions of fact, such as the extent to which remorse has been shown, is quintessentially a task that falls to the sentencing Judge, who is not bound to accept assertions by an offender that he is remorseful, even when the assertion is made in the witness box: Alvares v R at 320 [65].
The Applicant's complaint concerning the sentencing Judge's approach to the confiscation order does not strictly lie within the terms of Ground 3. That said, the Applicant had been literally caught in the act of committing these serious crimes. His preparedness to consent to a confiscation order under the Proceeds of Crime Act 2002 (Cth) did not provide any real assistance to the Applicant on the issue of contrition.
It was clear that the money did not belong to the Applicant or his co-offenders. This was a good example of the scenario identified by Howie J in R v Ansari at 119 [123] (see [68] above), where a money laundering offender "will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering". In truth, the Applicant forewent an opportunity to make a hopeless attempt to resist the confiscation of money which was not his. There is very little scope for this scenario to have demonstrated genuine contrition on his part.
The Applicant's decision to depart the jurisdiction, whilst the sentencing proceedings were on foot, did not assist him on the question of contrition. The Applicant was fortunate that the sentencing Judge took a relatively benign view of his conduct (see [43] above).
In my view, this is a case where the approach expressed in Mun v R had particular application. The fact that the Applicant did not give evidence of contrition was a relevant and important aspect bearing upon the exercise of the sentencing discretion. No error has been demonstrated in the approach of the sentencing Judge in this area.
I would reject the third ground of appeal.

Application of s.6(3) Criminal Appeal Act 1912 (NSW) The Applicant's Submissions

It was submitted for the Applicant that error had been demonstrated and that this Court should proceed to resentence the Applicant and impose a lesser sentence. An affidavit of the Applicant affirmed 12 February 2016 was relied upon for the purpose of resentencing.
It was submitted that consideration of all factors relevant to sentence, including application of the correct approach to sentencing on Count 2, and the correct approach to determination of the non-parole period, would result in a lesser sentence being imposed upon the Applicant who had, it was submitted, made positive steps towards his rehabilitation in a manner demonstrated in his affidavit of 12 February 2016. Crown Submissions
The Crown submitted that, even if error had been demonstrated, this Court would reach the opinion that no lesser sentence was warranted for the purpose of s.6(3) Criminal Appeal Act 1912 (NSW). Decision
The Applicant has demonstrated error in accordance with the first and second grounds of appeal.
Error having been established, this Court is required to exercise its independent sentencing discretion when it resentences the Applicant, in accordance with the principles in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 618-619 [43].
It is necessary to move to the question of sentence applying the correct approach with respect to areas where error has been established, and having regard to all objective and subjective factors bearing on sentence, including the recent affidavit of the Applicant, together with the provisions of s.16A Crimes Act 1914 (Cth).
The error in the first ground concerns Count 2 only, while the error in the second ground relates to both Counts 1 and 2.
The offence in Count 1 was a serious example of a s.400.9(1) crime. The amount of money involved (which was more than 10 times the statutory threshold) reflected the very serious criminal conduct which could reasonably be suspected to be the source of the cash. Added to this were the circumstances in which the Applicant took possession of this very large sum and his dealings with Saleh and others in that respect.
Whilst the sum of money was just above the statutory threshold, the offence in Count 2 was nevertheless a serious example of a money laundering offence under s.400.3(1)(b)(ii) of the Code. The maximum penalty for such an offence is imprisonment for 25 years.
The most important consideration on sentence is what the Applicant actually did: R v Ansari at 119 [123]-[124] (see [68] above). The Applicant played a pivotal role in the lead up to the s.400.3(b)(ii) offence, and in its implementation. He took possession of this large sum of money and organised the travel arrangements of the multiple persons who were to carry the money.
It may be inferred that Saleh provided the substantial sum of $58,660.00 to the Applicant to purchase the multiple airline tickets. Saleh was happy to fund two return first class tickets and five return business class tickets to Dhaka. Clearly, there was no shortage of money available to fund expensive air travel by the carriers as part of this money laundering exercise. The Applicant distributed the money to the various carriers who were to convey it to Bangladesh. He was the point of contact with Saleh, whom he dealt with directly and by telephone. It may be readily inferred that Saleh trusted the Applicant with this very large sum of money. The Applicant's criminality was significantly greater than that of his co-offenders, who were to be sentenced for lesser offences.
The understanding of the Applicant as to the purposes for which the money was to become an instrument of crime is a relevant consideration. The fact that the Applicant was involved in dealing with the money, for the intended purpose of breaching the reporting requirements under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), constituted a serious example of a crime of this type. However, this aspect is not decisive of the seriousness of the particular offence or the appropriate penalty: R v Huang; R v Siu [2007] NSWCCA 259; 174 A Crim R 370 at 380 [33].
Whilst the intended use of the money is a circumstance to be considered in assessing the overall conduct of the Applicant, it is not the primary factor. Any focus or regard to the maximum penalty for an intended offence (such as a s.53(1) offence) is likely to distract from consideration of the actual offence, and actual maximum penalty, for which the Applicant is being sentenced: R v Huang; R v Siu at 381 [37]. In setting the maximum penalties for s.400.3 "instrument of crime" offences, the legislature did not fix them by reference to the maximum penalty for the potential subsequent "instrument of crime" offence.
Money laundering on the scale disclosed in these offences should be considered as serious criminal activity that is at the very heart of organised professional crime syndicates: R v Huang; R v Siu at 381 [36]. The evidence concerning Saleh, the steps taken by him to supply the money to the Applicant and the large expenditure on multiple expensive airline tickets confirms this view.
The courts have emphasised the important role of general deterrence in sentencing for offences of this type: R v Huang; R v Siu at 381 [36]; R v Guo; R v Qian at 418 [91].
The Applicant had a prior criminal history, including sentences of imprisonment for computer and dishonesty offences. He had served terms of imprisonment and was not long off parole when he committed these offences. Specific deterrence remains an important factor on sentence in his case.
I have taken into account the Applicant's affidavit affirmed 12 February 2016.
Although the Applicant pleaded guilty at an early time, the plea was in the face of an overwhelming Crown case. His willingness to agree to the confiscation of the sum of money did not provide any real assistance to the Applicant by way of contrition (see [100]-[101] above).
I will maintain the 25% discount for the Applicant's pleas of guilty.
The appropriate course at first instance would have been to fix terms of imprisonment as nominated, but to set a single non-parole period under s.19AB Crimes Act 1914 (Cth), which commenced on 25 July 2014. In approaching the resentencing of the Applicant, I shall proceed in that way.
Having taken into account all relevant objective and subjective factors, I am satisfied that the sentence on Count 1 should remain a sentence of nine months' imprisonment. However, it is appropriate to resentence the Applicant on this matter without using the formula of a fixed term of imprisonment.
I am satisfied that a lesser sentence should be passed on Count 2. That should be, after taking into account the s.53(1) offence, a term of imprisonment of four years and nine months. I am satisfied that the existing degree of accumulation upon the Count 1 sentence should remain, so that the sentence on Count 2 should commence on 25 January 2015.
In fixing a single non-parole period, I have regard to the need for the minimum term of imprisonment to reflect the objective gravity of the offending, and the need for specific and general deterrence, whilst taking into account, as well, the Applicant's subjective circumstances including the need for rehabilitation. I am satisfied that the non-parole period to be fixed should be one of three years and six months commencing on 25 July 2014 and expiring on 24 January 2018. The non-parole period will comprise about 62% of the total head sentence.
The total effective term of imprisonment will comprise a head sentence of five years and three months commencing on 25 July 2014 and expiring on 24 October 2019, with a non-parole period of three years and six months commencing on 25 July 2014 and expiring on 24 January 2018. I am satisfied that this minimum term reflects the minimum period that justice requires that the Applicant should serve in custody for his offences (see [81]-[83] above).

Conclusion

The Applicant has made good the first and second grounds of appeal, but not the third ground.
I propose the following orders: 1. grant leave to appeal against sentence; 2. allow the appeal with respect to the sentences imposed on 8 August 2014; 3. quash the sentences imposed on 8 August 2014; 4. on Count 1, sentence the Applicant to imprisonment for nine months commencing on 25 July 2014; 5. on Count 2, taking into account under s.16BA Crimes Act 1914 (Cth) the offence under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), sentence the Applicant to imprisonment for four years and nine months commencing on 25 January 2015 and expiring on 24 October 2019; 6. pursuant to s.19AB Crimes Act 1914 (Cth), fix a single non-parole period of three years and six months commencing on 25 July 2014 and expiring on 24 January 2018.
R A HULME J: I agree with Johnson J.
DAVIES J: I agree with Johnson J.

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