Citation: R v Kurtulmus [2020] NSWDC 149
Court: District Court of NSW
Date: 26 March 2020
Judge(s): Bennett SC DCJ
Background
The offender was sentenced for one charge of dealing with the proceeds of crime, reckless as to whether the money was proceeds of crime, contrary to s 193B(3) of the Crimes Act 1900. The offending occurred over a short period in April 2014 and involved multiple cash collections totalling well over one million dollars. The maximum penalty for this offence is ten years' imprisonment, and no standard non-parole period applies.
The offender had also pleaded guilty in the Local Court and was committed to the District Court for sentence. He sought to have a further offence, participating in a criminal group under s 93T(1) of the Crimes Act 1900, taken into account on a Form 1 (that is, acknowledged by the offender and considered in setting the overall sentence, rather than prosecuted and punished separately).
The proceedings had a somewhat complicated history. At one stage the offender required the cross-examination of an undercover operative and the officer in charge, exploring questions about a significant delay between an earlier related prosecution and the commencement of the present proceedings. He later abandoned the first of those applications.
Legal Issues
- What percentage discount for the utilitarian value of the guilty plea was appropriate, given the procedural conduct during the proceedings?
- To what extent should the Form 1 offence (participating in a criminal group) increase the sentence for the principal offence?
- Whether special circumstances existed to justify a longer-than-usual parole period relative to the non-parole period.
Decision
Guilty plea discount. The Crown submitted that the discount should be capped at 20%, pointing to the offender's earlier (and ultimately abandoned) requirement for cross-examination of the undercover operative, and his exploration of delay through cross-examination of the officer in charge. Bennett SC DCJ accepted that the prosecution delay was a legitimate matter for the offender to investigate and awarded a 25% discount. The judge noted, however, that establishing the reasons for delay would not substantially reduce the punishment the offender otherwise faced.
Form 1 offence. The judge confirmed the applicable principle from Attorney General's Application No 1 of 2002: a Form 1 offence must produce some appropriate increase to the sentence for the principal offence, to reflect personal deterrence and community entitlement to retribution for all of the offender's conduct. The offender's submission that the Form 1 conduct was largely the same conduct as the principal offence was accepted to a significant degree, meaning the impingement on the head sentence was modest. Because the offender had not given evidence, the court was confined to drawing inferences from available direct evidence and any out-of-court statements when assessing the nature and extent of the additional offending.
Special circumstances. Bennett SC DCJ found that special circumstances existed warranting a departure from the usual ratio between non-parole period and head sentence. The relevant considerations included that this was the offender's first time in custody, the need to encourage ongoing rehabilitation, and the additional pressure that family circumstances placed on the offender's experience of custody.
Orders Made
- Convicted of dealing with the proceeds of crime, reckless as to whether it was proceeds of crime (s 193B(3) Crimes Act 1900)
- Sentence of imprisonment with a non-parole period of 1 year and 4 months, commencing 25 March 2020
- Head sentence of 3 years, 4 months and 15 days
- Eligible for release on parole on 24 July 2021
- Form 1 offence (participating in a criminal group, s 93T(1) Crimes Act 1900) certified and taken into account
Key Takeaways
- A 25% guilty plea discount was available even where the offender had initially required cross-examination of key witnesses, because the court found the exploration of prosecution delay was a legitimate procedural step that warranted a slightly more generous discount than the Crown proposed.
- Where an offender seeks to have a Form 1 offence taken into account alongside the principal offence, the sentence for the principal offence must be increased to reflect the additional wrongdoing, but the degree of increase depends on the nature and extent of the Form 1 conduct and how distinct it is from the principal offending.
- Under s 93T(1) of the Crimes Act 1900, the offence of participating in a criminal group can be made out on the basis of either actual or imputed knowledge, and a person need not be a member of the group in order to participate in it.
- The District Court confirmed that delay in commencing proceedings is a matter an offender is entitled to explore at sentencing, even if establishing such delay yields only limited mitigation of the ultimate penalty.
- Special circumstances justifying a longer parole period relative to the non-parole period can be established through a combination of factors including a first custodial sentence, rehabilitation prospects, and the particular hardship that family circumstances impose on the offender in custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93S, 93T, 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Cases
- Atilgan v R [2018] NSWCCA 5
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Luong v The Queen [2014] NSWCCA 129
- Mill v R (1988) 166 CLR 59
- Qutami [2001] NSWCCA 353
- R v Borkowski (2009) NSWCCA 102
- R v Todd [1982] 2 NSWLR 517
- R v Tuki No 4 [2013] NSWSC 1864
- The Queen v Kay (2004) NSWCCA 130
- The Queen v Ly (2014) NSWCCA 78
- The Queen v Olbrich (1999) 199 CLR 270