Islam v R [2016] NSWCCA 233

Islam v R [2016] NSWCCA 233

The sentencing judge erred on Count 2 by treating the intended instrument-of-crime use as a more serious unidentified criminal purpose when the Crown had confined its case to breaches of the reporting requirements under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The judge also erred by determining the federal non-parole period by reference to a usual ratio. No error was shown in the treatment of contrition, because the judge was entitled to consider the absence of sworn evidence and give limited weight to untested assertions. In the independent resentencing exercise, the offending remained serious, particularly given the Applicant's pivotal role, prior...

Jurisdiction
Australia
Judgment Date
28 October 2016
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed by the District Court of New South Wales on 8 August 2014; Appeal Allowed and Applicant Resentenced
Outcome
Leave granted; appeal allowed with respect to the sentences imposed on 8 August 2014; sentences quashed; Applicant resentenced.
Legal Topics
['appeal Against Sentence' 'dealing With Money Reasonably Suspected of Being Proceeds of Crime' 'dealing With Money Intending It Would Become an Instrument of Crime' 'federal Non Parole Period' 'contrition and Remorse' 'section 16 BA Offence Taken Into Account' 'criminal Appeal Act 1912 (nsw) S.6(3)']
['criminal Law' 'sentencing' 'money Laundering'] ['appeal Against Sentence' 'dealing With Money Reasonably Suspected of Being Proceeds of Crime' 'dealing With Money Intending It Would Become an Instrument of Crime' 'federal Non Parole Period' 'contrition and Remorse' 'section 16 BA Offence Taken Into Account' 'criminal Appeal Act 1912 (nsw) S.6(3)']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentences Imposed by the District Court of New South Wales on 8 August 2014; Appeal Allowed and Applicant Resentenced

Legal Issues

  1. 1 ['Whether the sentencing judge erred in characterising the intended use of the money as an instrument of crime for Count 2.' 'Whether the sentencing judge erred by applying a presumptive or usual non-parole period ratio to federal offences.' 'Whether the sentencing judge erred by giving no weight to contrition because it was not supported by sworn evidence.' 'Whether a lesser sentence was warranted under s.6(3) Criminal Appeal Act 1912 (NSW).']

Ratio Decidendi

The sentencing judge erred on Count 2 by treating the intended instrument-of-crime use as a more serious unidentified criminal purpose when the Crown had confined its case to breaches of the reporting requirements under s.53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The judge also erred by determining the federal non-parole period by reference to a usual ratio. No error was shown in the treatment of contrition, because the judge was entitled to consider the absence of sworn evidence and give limited weight to untested assertions. In the independent resentencing exercise, the offending remained serious, particularly given the Applicant's pivotal role, prior...

Court Disposition

Leave granted; appeal allowed with respect to the sentences imposed on 8 August 2014; sentences quashed; Applicant resentenced.

Orders

  • ['Leave is granted to appeal against sentence.' 'Appeal allowed with respect to the sentences imposed on 8 August 2014.' 'Sentences imposed on 8 August 2014 are quashed.' 'On Count 1, the Applicant is sentenced to imprisonment for nine months commencing on 25 July 2014.' 'On Count 2, taking into account under s.16BA...