Australia, Sept. 6 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 6:

1. PRICE AJA: I have read the judgments of N Adams J and Sweeney J in draft. I also am in respectful disagreement with Sweeney J's reasons at [72]-[76] and adopt what is said by N Adams J at [17]-[18].

2. As to my disagreement with Sweeney J's broad statement of principle at [76], the factual circumstances in dealing with the proceeds of crime in Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135 ("Thorn"); Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 ("Nahlous") and Schembri v R [2010] NSWCCA 149 ("Schembri"), are materially different to the facts in the applicant's case.

3. In Thorn, the applicant's dealing with the money fraudulently obtained was confined to transferring the money to his personal account or drawing it from an ATM so he could use the money to gamble. In Nahlous, the applicant's dealing with the money he received from the sale of the 50 decoders to an undercover police officer was confined to placing the money in his vehicle which was recovered immediately after his arrest.

4. It is unclear from this Court's judgment in Schembri what the precise facts were in relation to the count of dealing with the proceeds of crime, but the Court was of the view at [16] (Beazley JA, Kirby and Johnson JJ) that the receipt of the money from the false Goods and Services Tax refunds did not result in a separate act of criminality that warranted a separate charge after citing with approval the following passage in Nahlous, where the Court stated at [17] (McClellan CJ at CL, Howie and Rothman JJ):

"We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty."

5. Money laundering offences of the type identified in Thorn, Nahlous and Schembri have been referred to as "highly technical": Subramaniam v R [2013] NSWCCA 159 at [34] (Latham J, Emmett JA and Simpson J agreeing) ("Subramaniam"). That is not an apt description for the applicant's dealing with the money by his dishonest activity. In the present case there is additional criminality. The applicant's dealing with the proceeds of crime was not confined to depositing money in bank accounts, but involved fund transfers which occurred shortly after the money was deposited. A majority of the fund transfers were international, including transfers to an account in the name of the applicant in Romania.

6. This is not a case where the dealing with the proceeds of crimes does not involve a separate act of criminality. In such a case, the charge may be an abuse of process or the sentence should be concurrent: Standen v DPP (Cth) [2011] NSWCCA 187; (2011) 254 FLR 467 at [22]-[28] (Hodgson JA, Adams and Hall JJ agreeing); R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 at [26] (Beech-Jones J).

7. Although there is in the present case some shared criminality with the offences by which the money was dishonestly obtained the shared criminality is properly taken into account by the sentence being partially accumulated taking into account the principle of totality: Subramaniam at [34]-[36] (Latham J, Emmett JA and Simpson J agreeing); Kerr v R [2014] NSWCCA 235 at [46] (Harrison J, Hoeben CJ at CL and McCallum J agreeing); Clarke v R [2019] NTCCA 2 at [75] (Grant CJ, Blokland and Barr JJ).

8. I agree with N Adams J and Sweeney J that the error under ground 1(a) had the capacity to influence the sentence and the applicant is to be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1986dd797be5178416aff492)

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