Atilgan v R [2018] NSWCCA 5

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Atilgan v R [2018] NSWCCA 5 Hearing dates: 22 November 2017 Decision date: 07 February 2018 Before: Macfarlan JA at [1] Fullerton J at [2] Button J at [3] Decision: (1) Leave to appeal against sentence granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – recklessly dealing with proceeds of crime – whether sentencing judge erroneously sentenced the applicant for a more aggravated offence featuring knowledge – appeal dismissed. Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: R v De Simoni (1981) 147 CLR 383 Category: Principal judgment Parties: Zekimurat Atilgan (Applicant) Regina (Respondent) Representation: Counsel: P Lange (Applicant) N J Adams (Respondent)

Solicitors: Hanna Legal (Applicant) Solicitor for the Public Prosecutions (Respondent) File Number(s): 2015/265393 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 4 May 2017 Before: Blackmore SC DCJ File Number(s): 2015/00265930

1. MACFARLAN JA: I agree with Button J. 2. FULLERTON J: I agree with Button J. 3. BUTTON J:

Introduction 1. Mr Zekimurat Atilgan (the applicant) pleaded guilty in the Local Court to two offences against s 193B(3) of the Crimes Act 1900 (NSW). That subsection is as follows: "A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence." The subject of one count was a sum of $200,050. The subject of the other count was a sum of $250,000. The maximum penalty for the offence is imprisonment for ten years. 2. The applicant was committed for sentence, and came before Blackmore SC DCJ on 4 May 2017. I shall recount the objective and subjective features of the matter very briefly later in this judgment, when I come to review the proceedings on sentence (POS) and the remarks on sentence (ROS). At this stage, it suffices to say that his Honour rejected the proposition that any sentence other than full-time imprisonment was open. 3. With regard to the offence featuring the lesser sum, a head sentence of two years and six months to commence on 3 May 2017 was imposed, with a non-parole period of one year six months. With regard to the offence featuring the greater amount of money, a head sentence of two years and nine months to commence on 3 August 2017 was imposed, with a non-parole period of one year and six months. 4. In other words: the degree of accumulation between the two sentences was six months; the resultant total head sentence was imprisonment for three years; the total non-parole period was one year and nine months; and, clearly enough, special circumstances were found that led to a marked adjustment in the ratio between the total non-parole period and the total head sentence.