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Court of Criminal Appeal 19 November 2025

SZ (a pseudonym) v R

[2025] NSWCCA 196

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS DE SIMONI ERROR NO LESSER SENTENCE WARRANTED

Citation: SZ (a pseudonym) v R [2025] NSWCCA 196
Court: Court of Criminal Appeal, NSW
Date: 19 November 2025
Judges: Adamson JA, Chen J, Coleman J

Background

The applicant pleaded guilty in the District Court to six offences of dealing with property reasonably suspected of being proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW). The offending involved 1,996 structured cash deposits made over an 11-month period. "Structured" deposits are deposits deliberately kept below the threshold that triggers mandatory reporting, so as to avoid detection. The sentencing judge described the conduct as extremely serious, noting the applicant was part of an organised criminal activity and had prior convictions for similar offending just two years earlier.

On 9 August 2024, the sentencing judge imposed an aggregate sentence of 4 years and 6 months imprisonment, backdated to commence 8 June 2024, with a non-parole period of 2 years and 6 months. The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal.

Three grounds were pursued. The first alleged the aggregate sentence was manifestly excessive. The second alleged a De Simoni error in the sentencing judge's assessment of objective gravity. The third, raised for the first time during oral argument, challenged the 10% discount granted for the applicant's assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the aggregate sentence of 4 years and 6 months was manifestly excessive (Ground 1)
  • Whether the sentencing judge committed a De Simoni error by taking into account the applicant's state of mind (that he "must have been aware" the funds were from illegitimate sources) when the offence only requires a reasonable suspicion (Ground 2)
  • Whether the 10% discount for assistance to authorities was unreasonably low, and whether that ground could be added to the appeal at such a late stage (Ground 3)

Decision

Ground 2: De Simoni error. The Court granted leave and found error was established, a conclusion the Crown also conceded. The offence under s 193C(1) requires only that there be "reasonable grounds to suspect" the property is proceeds of crime. It does not require actual knowledge. By finding that the applicant "must have been aware" the money came from illegitimate sources, the sentencing judge had impermissibly taken into account a more serious mental state than the offence requires. This is a De Simoni error: sentencing an offender by reference to conduct more serious than that of which they were convicted.

Ground 3: Discount for assistance. The Court refused leave to argue this ground. The size of a discount under s 23(3) of the Crimes (Sentencing Procedure) Act is a matter for the sentencing judge's discretion, and an appellate court will only intervene on grounds of the kind identified in House v The King. The Court found no merit in the submission that 15% rather than 10% should have been applied.

Resentencing following the De Simoni error. Because error was established on Ground 2, the Court was required to exercise the sentencing discretion afresh, following the approach confirmed in Kentwell v The Queen (2014) 252 CLR 601. Having done so, the Court found it would have imposed a slightly higher sentence than the sentencing judge. Because no lesser sentence was warranted in law, the appeal was dismissed. Ground 1 (manifest excess) did not require separate determination in light of that conclusion.

Adamson JA added remarks directed at the procedural issue of late ground amendments. Her Honour noted that patent errors must be expressly identified in a notice of appeal, rather than folded into a manifest excess ground and raised at the hearing, as this denies the Crown a proper opportunity to respond.

Orders Made

  • Leave to further amend the Notice of Appeal to argue proposed Ground 3 is refused
  • Leave to appeal granted with respect to Grounds 1 and 2
  • The appeal is dismissed

Key Takeaways

  • A De Simoni error occurs when a sentencing judge, in assessing objective gravity, attributes to an offender a more culpable mental state than the relevant offence actually requires. For offences under s 193C(1) of the Crimes Act, which require only reasonable grounds for suspicion, a finding that an offender "must have known" the funds were illicitly sourced goes beyond what the offence demands.

  • Establishing a De Simoni error does not automatically produce a lower sentence on appeal. The Court of Criminal Appeal is required by Kentwell to exercise the sentencing discretion afresh, and where that fresh exercise would produce a higher sentence, the appeal will be dismissed.

  • Discounts under s 23(3) of the Crimes (Sentencing Procedure) Act for assistance to authorities are discretionary. They will not be disturbed on appeal absent an error of the kind described in House v The King, such as a mistake of fact, application of a wrong principle, or a result that is unreasonable.

  • Late addition of appeal grounds raises procedural fairness concerns. The Court of Criminal Appeal reiterated that any reliance on patent error must be expressly pleaded in the notice of appeal, not subsumed within a general manifest excess ground and raised orally at the hearing.

  • In dismissing the appeal, the Court declined to specify the higher sentence it would have imposed, consistent with the authorities cited in RO v R [2019] NSWCCA 183 concerning the practice of withholding that figure where the original sentence is left undisturbed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth)

Cases
- Armstrong v R [2015] NSWCCA 273
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Oliver v R [2020] NSWCCA 26
- R v MT [2022] NSWCCA 53
- R v Wing Cheong Li [2010] NSWCCA 125; (2010) 202 A Crim R 195
- R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132
- RO v R [2019] NSWCCA 183
- The Queen v De Simoni (1981) 147 CLR 383