AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 7 February 2018

Atilgan v R

[2018] NSWCCA 5

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED.

Citation: Atilgan v R [2018] NSWCCA 5
Court: Court of Criminal Appeal
Date: 7 February 2018
Judges: Macfarlan JA, Fullerton J, Button J

Background

The applicant pleaded guilty in the Local Court to two counts of dealing with proceeds of crime while reckless as to whether the money constituted proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900 (NSW). The two counts concerned sums of $200,050 and $250,000, each delivered in cash-filled bags to a person who was, unknown to the applicant, an undercover police officer. The maximum penalty for the offence is ten years' imprisonment.

The matter was committed for sentence to the District Court. The sentencing judge, Blackmore SC DCJ, imposed a total head sentence of three years' imprisonment, with a total non-parole period of one year and nine months. Both sentences were partially accumulated.

At the sentencing proceedings, the applicant's subjective case included a claim that he believed he was helping an acquaintance repay a gambling debt, and that he did not know the money was connected to drug dealing. The sentencing judge rejected that account, making a number of remarks about the applicant's involvement in what his Honour described as international drug dealing of a high order.

  • Whether the sentencing judge, in his remarks on sentence, erroneously sentenced the applicant for a more serious offence requiring knowledge that the money was proceeds of crime, rather than the offence to which he pleaded guilty, which required only recklessness.
  • Whether those remarks constituted a breach of the principle in R v De Simoni (1981) 147 CLR 383, which prohibits a sentencing judge from taking into account circumstances of aggravation that would have warranted a conviction for a more serious offence.

Decision

Button J (with whom Macfarlan JA and Fullerton J agreed) dismissed the appeal, finding no error in the sentencing judge's approach. The Court accepted that the ground was arguable, given the strength of some of the language used by his Honour at the proceedings on sentence, but concluded that the remarks, properly understood, did not amount to sentencing the applicant for a knowledge-based offence.

The Court identified four reasons for this conclusion. First, the remarks on sentence, read as a whole, did not demonstrate that his Honour sentenced the applicant on the basis of knowledge rather than recklessness. Second, the proceedings on sentence were relevant context: the applicant's own evidence at the reopened hearing had created significant confusion by appearing to resile from his plea, which acknowledged he had foreseen the possibility that the money was proceeds of crime. A claim that the money was repaying a gambling debt was inconsistent with the plea, because gambling is not illegal and money connected to it cannot be proceeds of crime.

Third, the sentencing judge's findings about the applicant's state of mind were properly characterised as resolving that confusion, and as a legitimate observation that the objective gravity of the offending was increased because the underlying crime was itself very serious. Those findings were not an aggravated finding of knowledge beyond what the plea admitted. Fourth, the sentencing judge's likening of the applicant to a drug courier was consistent with a favourable characterisation: a person of otherwise good character playing a menial role in a broader criminal operation run by more sophisticated and better-rewarded principals. The reference to the applicant possibly having been a "dupe" was, the Court noted, flatly inconsistent with any erroneous finding of actual knowledge.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The De Simoni principle prohibits a sentencing judge from treating a circumstance of aggravation as relevant where that circumstance would have warranted conviction for a more serious offence. Here, the more serious offences under ss 193B(1) and (2) of the Crimes Act require knowledge, making a finding of knowledge the relevant aggravating circumstance to examine.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that strong language in remarks on sentence does not automatically establish a De Simoni error; the remarks must be read as a whole, and in the context of what occurred during the sentencing proceedings.
  • Where an applicant's evidence at sentence appears to contradict the admitted elements of a guilty plea, a sentencing judge's comments resolving that contradiction do not necessarily constitute impermissible findings of a more aggravated mental element.
  • No error was established where the sentencing judge's characterisation of the applicant as akin to a drug courier was consistent with a favourable finding about the applicant's role, rather than an affirmative finding of knowledge.
  • A plea of guilty to a recklessness-based offence involves a public and solemn admission that the accused foresaw the possibility of the relevant fact. A subjective account at sentence that is logically inconsistent with that admission carries significant risks during the sentencing process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 193B(1), 193B(2), 193B(3)

Cases:
- R v De Simoni (1981) 147 CLR 383