Syed v R

1. [1]

   N ADAMS CJ at CL: I agree with the orders proposed by Yehia J for the reasons provided by her Honour subject to the following.

2. [2]

   It is well established that an applicant is usually bound by the conduct of his or her representative: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460. As Johnson J observed at [81] of that decision:

3. [3]

   His Honour went on to observe the following at [82]:

4. [4]

   Thus, it can be seen that an exception to the general rule that an applicant is bound by the way his or her representative conducted the proceedings on sentence below is where something has been overlooked by defence counsel which would have operated unequivocally in the applicant’s favour. As McCallum J (as her Honour then was), with whom Beazley P and Davies J agreed, observed in Griffin v R [2018] NSWCCA 259 at [36]:

5. [5]

   In the present case, the Crown provided written submissions to the sentencing judge which clearly stated the Crown case on this issue as follows:

6. [6]

   The submission was supported by an express reference to that portion of the Agreed Facts which the Crown submitted supported the relevant factual finding; namely page 4 of the Crown Bundle at [6] and [7]. Those paragraphs are in these terms:

7. [7]

   The applicant did not submit anything contrary to this Crown submission at the proceedings on sentence. This is despite the Crown submission being squarely put in writing and with the evidentiary basis for that submission being identified. There are two possible explanations as to why no issue was taken with the Crown submission below: either it was consistent with the defence case or defence counsel simply overlooked the submission. Either way, in the absence of any contrary submission being put, the sentencing judge was entitled to proceed on the basis that the issue was not disputed.

8. [8]

   In this Court issue was taken with the relevant Crown submission (and the subsequent finding by the sentencing judge) for the first time. That is most unfortunate. But the factual finding was a significant one and I am satisfied that it operates unequivocally in the applicant’s favour. For that reason, I am satisfied that it is appropriate for this Court to permit the argument to be put for the first time.

9. [9]

   As for whether it was reasonably open for the sentencing judge to find that the applicant did not voluntarily cease his fraudulent behaviour until he was confronted about it, it seems to me that that is one inference available to be drawn from the material. But that is not the relevant test. I accept that, on the evidence before the Court, it was not reasonably open to make that finding beyond reasonable doubt. For those reasons, I agree with Yehia J that ground 1 should be upheld.

10. [10]

    As for the re-sentencing of the applicant, it is to be accepted that the new aggregate sentence of imprisonment is lesser than that imposed at first instance. That flows in part from the fact that the finding the subject of ground 1 is not available on re-sentence as well as the evidence of remorse and other material available about the applicant’s subjective case since he was first sentenced on 25 October 2024. As Yehia J has explained, given that the Court upheld ground 1 there was no requirement to consider whether the aggregate sentence imposed was manifestly excessive and, like her Honour, I expressly make no finding in that regard.

11. [11]

    HAMILL J: I agree with Yehia J.

12. [12]

    YEHIA J: Mr Mohammed Saderuddin Syed (“the applicant”) seeks leave to appeal against the sentence imposed on him by Noman SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Sydney on 25 October 2024, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”). The appeal is made in time.

13. [13]

    The applicant entered pleas of guilty and was sentenced for six offences of dishonestly obtain financial advantage by deception, pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW) (“Crimes Act”). The pleas of guilty were entered in the District Court more than two weeks before the third listing of the trial, following negotiations which resulted in an amended indictment. The sentencing judge applied a 10% discount for the guilty pleas pursuant to s 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

14. [14]

    The applicant had been the financial controller of the victim company, Crosby Textor Research Strategies Results Pty Ltd (“CTRSR”). He committed the offences over the course of six years. The amended indictment contained six “representative counts”, whereby each charge reflected fraudulent transactions effected over the course of a year, commencing in 2012 (count 1) and concluding in 2017 to 2018 (count 6). In total, the six counts reflected the misappropriation of $182,492.50.

15. [15]

    The sentencing judge imposed an aggregate sentence of 4 years and 9 months’ imprisonment, with a non-parole period of 2 years and 10 months, commencing on 25 October 2024 and expiring on 24 July 2029. The applicant is first eligible for release to parole on 24 August 2027.

16. [16]

    The following table sets out the principal offences, the maximum penalties, and the indicative sentences pronounced by the sentencing judge.

17. [17]

    The sentencing judge also made a compensation order, pursuant to s 97(1) of the Victims Rights and Support Act 2013 (NSW), for the applicant to pay the sum of $136,882.50 to CTRSR (“compensation order”).

Grounds of appeal

1. [18]

   The applicant relies on two grounds of appeal:

   1. (1)

      Ground 1: The learned sentencing judge erred in finding the applicant “did not voluntarily desist” from offending and “stopped when his employment ceased”.

   2. (2)

      Ground 2: The sentence is manifestly excessive.

Circumstances of offending

1. [19]

   The following summary of the factual circumstances is derived from the Statement of Agreed Facts tendered on sentence (“Agreed Facts”).

2. [20]

   In October 2008, the applicant was employed as an assistant accountant by CTRSR, which was a wholly owned subsidiary of the CT Group, a company registered in England. The applicant’s starting salary package was $60,000 including superannuation.

3. [21]

   Over the years, the applicant’s position and salary changed such that by September 2009, he was promoted to the role of financial controller. Up to July 2014, the applicant’s salary was $120,000 and it increased to $185,000.00 from July 2014. In February 2018, his role was changed to the financial controller of the CT Group. In the years that the applicant wasn’t given a pay rise, he received bonuses instead.

4. [22]

   As part of each of his financial roles, the applicant had oversight of all financial aspects of CTRSR and its associated entities, both in Australia and internationally. The applicant had access to CTRSR’s bank accounts and was an authorised signatory to approve any payments lodged from the company’s bank accounts. The applicant also had access to and was largely responsible for maintaining CTRSR’s accounting software, MYOB. As CTRSR did not provide company credit cards or BPAY facilities, there were occasions when employees would have to use their personal funds for company expenses and seek reimbursement from CTRSR.

5. [23]

   On 14 February 2012, the applicant transferred the sum of $8,625.23, as part of a batch payment of $76,858.31, from an account in CTRSR’s name into a bank account under his name.

6. [24]

   On 18 May 2012, the applicant transferred the sum of $6,400, as part of a batch payment of $9,747.51, from an account in CTRSR’s name into a bank account under his name. He recorded the $6,400 in MYOB as an incentive to group participants and added a memo titled with the name of a CTRSR staff member.

7. [25]

   On 30 November 2012, the applicant transferred the sum of $6,400 from an account in CTRSR’s name into a bank account under his name. He recorded the $6,400 in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

8. [26]

   On 25 January 2013, the applicant transferred the sum of $7,000, as part of a batch payment of $24,892.91, from an account in CTRSR’s name into a bank account under his name. He recorded the $7,000 in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

9. [27]

   On 19 April 2013, the applicant transferred the sum of $8,000, as part of a batch payment of $15,107.72, from an account in CTRSR’s name into a bank account under his name. He recorded the $8,000 in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

10. [28]

    On 11 October 2013, the applicant transferred the sum of $12,800, as part of a batch payment of $30,560.05, from an account in CTRSR’s name into a bank account under his name. He recorded the $12,800 in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

11. [29]

    On 30 January 2014, the applicant transferred the sum of $12,915.71, as part of a batch payment of $28,245.89, from an account in CTRSR’s name into a bank account under his name.

12. [30]

    On 1 April 2014, the applicant transferred the sum of $12,800, as part of a batch payment of $21,791.14, from an account in CTRSR’s name into a bank account under his name. He recorded the $12,800 in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

13. [31]

    On 22 October 2014, the applicant transferred the sum of $9,600 and the sum of $3,200, as part of one batch payment of $22,244.79, from an account in CTRSR’s name into a bank account under his name. He recorded the entire amount (the total being $12,800) in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

14. [32]

    On 16 February 2015, the applicant transferred the sum of $5,000 from an account in CTRSR’s name into a bank account under his name. He recorded the $5,000 in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

15. [33]

    On 3 June 2015, the applicant transferred the sum of $4,800 from an account in CTRSR’s name into a bank account under his name. He recorded the $4,800 in MYOB as an incentive to group participants and added a memo “[i]ncentives”.

16. [34]

    On 30 September 2015, the applicant transferred the sum of $12,800, as part of a batch payment of $117,346.21, from an account in CTRSR’s name into a bank account under his name. He recorded the $12,800 that he was not entitled to in MYOB as two transfers of $6,400 each and allocated them as incentives to group participants and added a memo “[i]ncentives”.

17. [35]

    On 9 December 2015, the applicant transferred the sum of $4,882.50 from an account in CTRSR’s name into a bank account under his name. He recorded the $4,882.50 in MYOB as an incentive to group participants and added a memo identifying a staff member of CTRSR.

18. [36]

    On 17 December 2015, the applicant transferred the sum of $4,800 from an account in CTRSR’s name into a bank account under his name. He recorded the $4,800 in MYOB as travel and accommodation for CTRSR staff and added a memo “[i]ncentives”.

19. [37]

    On 22 February 2016, the applicant transferred the sum of $4,800 from an account in CTRSR’s name into a bank account under his name. He recorded the $4,800 in MYOB as travel and accommodation for CTRSR staff and added a memo “[i]ncentives”.

20. [38]

    On 26 April 2016, the applicant transferred the sum of $6,400, as part of a batch payment of $68,706.13, from an account in CTRSR’s name into a bank account under his name. He recorded the $6,400 in MYOB as travel and accommodation for CTRSR staff and added a memo “[i]ncentives”.

21. [39]

    On 31 August 2016, the applicant transferred the sum of $12,800 from an account in CTRSR’s name into a bank account under his name. He recorded the entire amount (the total being $12,800) in MYOB as two transfers of $6,400 each and allocated them as incentives to group participants and added a memo “[i]ncentives”.

22. [40]

    On 5 December 2016, the applicant transferred the sum of $4,800 from an account in CTRSR’s name into a bank account under his name. He recorded the $4,800 in MYOB as travel and accommodation for CTRSR staff and added a memo “[i]ncentives”.

23. [41]

    During the period 1 January 2017 to 15 March 2018, the applicant dishonestly by deception obtained a financial advantage of at least the value of his termination payment in that year, being $45,610. The applicant used the same methods as set out in counts 1 to 5.

24. [42]

    In October 2018, the applicant’s position was made redundant due to a company restructure. On 24 October 2018, the applicant and CTRSR agreed that his employment would cease on 25 January 2019, and that he was to be paid a full redundancy package.

25. [43]

    On 7 January 2019, a new employee commenced with CTRSR, and over the next two weeks, she discovered anomalies with the company’s expense payments.

26. [44]

    On 18 January 2019, the applicant attended a meeting with the managing director of CTRSR, Mr David Bell. During this interview, the following was said of relevance:

27. [45]

    On 23 January 2019, the applicant sent an email to Mr Bell, including the following of relevance:

28. [46]

    On 24 January 2019, the applicant attended another meeting with Mr Bell. During this interview, the following of relevance was said:

29. [47]

    During the interview, Mr Bell advised the applicant that his outstanding annual leave and long service leave, due to be paid to him by CTRSR, amounted to $45,610. Mr Bell asked the applicant whether he would be willing to give back the outstanding payment as repayment to the company for the money he stole. The applicant agreed and signed a document to this effect. This sum relates to count 6 (as detailed at [41] above).

30. [48]

    Later that day (24 January 2019), the applicant’s employment was terminated.

31. [49]

    Shortly thereafter, CTRSR reported the matter to police, and on 13 March 2019, the applicant was arrested. He exercised his right to silence and declined to participate in an interview with police.

Remarks on sentence

1. [50]

   The sentencing judge found that “[t]here was evidently some planning and no particular transaction supporting an offence speaks of impulsivity”, noting the different “accounting tricks” used by the applicant to hide his fraud and the fact that he employed a not dissimilar process on each occasion: ROS at [15].

2. [51]

   The sentencing judge found that the applicant utilised his skill and took advantage of his access to financial software, and of the accounting systems which he controlled, to perpetrate the ongoing fraud. Her Honour further found that the offences were sufficiently sophisticated to remain undetected until subject to external scrutiny: ROS at [16]-[17].

3. [52]

   The sentencing judge found that the most significant circumstance of the fraud was the position of trust held by the applicant. Her Honour relevantly observed:

4. [53]

   The sentencing judge made the following observations with respect to the applicant’s motive for the offending:

5. [54]

   The sentencing judge determined that each offence “entail[ed] a serious example of the offence provision despite the relatively limited quantum involved”. Her Honour indicated that, to the extent that there were differences in “quantum, number of transactions and repayment”, those factors would find reflection in the different indicative sentences proposed: ROS at [22].

6. [55]

   The applicant was aged 49 years at the time of sentencing. He had no prior criminal convictions. He arrived in Australia in 2000 on a skilled migrant visa. The sentencing judge observed that, whilst the applicant must have been of good character in India to secure a visa, his good character ceased at the time he commenced defrauding the victim company in 2012, if not earlier: ROS at [23]-[24].

7. [56]

   The sentencing judge accepted that the applicant used his position, one that he would only have retained whilst of good character, to commit the offences, and that good character may be given less weight where it is exploited to offend. The sentencing judge nonetheless afforded appropriate weight to the fact that the applicant was without convictions and generally of good character until the age of 37: ROS at [25].

8. [57]

   The sentencing judge acknowledged that the applicant was a person who had materially contributed to the community and that there was compelling evidence of his contribution to support others. However, her Honour observed that the applicant presented as “living a double life”, essentially deceiving those who provided character references in a similar way to the authors of the victim impact statements who were “similarly hoodwinked about the overall nature of the [applicant]”: ROS at [26]-[27].

9. [58]

   The applicant commenced treatment with a psychologist, Amina Ahmed, after his conduct was detected. The applicant was hospitalised for three days in April 2019 after his arrest and presented for treatment with Ms Ahmed, exhibiting anxiety and depression. He reported two instances of self-harm and suicidal ideation. The sentencing judge observed that, whilst the applicant’s mental health was described as “fragile”, there was no Mental Health Care Plan and no treatment other than medication for over three years. Ms Ahmed stated that the applicant expressed deep regret, although what was said is not known: ROS at [44].

10. [59]

    A report was also provided by Mr John Machlin, clinical psychologist, based on a consultation with the applicant in September 2024. The applicant explained that he had “lost track on keeping an exact dollar value” and that he took a “lenient” approach to reimbursing himself for expenses. The applicant described it as a “very bad practice of accounting” and noted that work and home pressures contributed to “his drop in professional standards”. The sentencing judge did not accept these descriptions, noting that the applicant’s offending objectively entailed “sustained and intentional fraudulent conduct”. Her Honour further found that there was no acceptance of responsibility or remorse conveyed in what the applicant expressed to Mr Machlin: ROS at [45].

11. [60]

    The sentencing judge referred to Mr Machlin’s diagnosis that the applicant suffered from a Major Depressive Disorder, comorbid with anxiety and panic, which was reactive to his post-discovery circumstances. Her Honour accepted that the applicant’s diagnosis would make his time in custody more onerous: ROS at [45], [67].

12. [61]

    Both Mr Machlin and the applicant’s treating psychologist assessed him as having a low risk of reoffending. This was consistent with the opinion of the author of the Sentencing Assessment Report (“SAR”) tendered by the Crown. Relevantly, the SAR stated that the applicant was cohabitating in the family home, although separated from his wife. The applicant reported feeling optimistic that their marriage would survive. At the time of the preparation of the SAR, the applicant was unemployed and there was no indication about what financial support would be available to him: ROS at [38].

13. [62]

    The sentencing judge accepted that the applicant had a low risk of reoffending, as he was “essentially pro-social” and continued to have the support of family and community, notwithstanding his offending. Her Honour found that specific deterrence had a limited role to play as it was very unlikely that he would ever again be employed in a position which would enable him to similarly offend: ROS at [39].

14. [63]

    However, the sentencing judge concluded that the favourable finding regarding his risk of reoffending did “not equate with a positive finding of rehabilitation”, which hinged more upon insight and remorse: ROS at [40].

15. [64]

    The sentencing judge found that, despite numerous expressions of remorse, there had not been genuine remorse. This was because where an expression of remorse was informed by an account, the applicant’s account was not consistent with the offence that he was being sentenced for. Further, her Honour did not accept that the applicant’s lack of opposition to a compensation order supported a finding of remorse: ROS at [50], [55].

16. [65]

    Following the conclusion of the sentence proceedings, the Crown became aware of evidence suggesting that, contrary to what he had told Mr Machlin and had said in his letter to the Court, the applicant had been working as an accountant from 2022 to 2024 (Exhibit G on sentence). The sentencing judge found that the applicant had “brazenly lied to present a more powerful subjective case”, which reflected a “lack of veracity in communicating with those employed to advance his hearsay accounts”. Her Honour indicated that this evidence, tendered on the day that judgment was handed down, simply “reinforce[d]” her “earlier conclusions and observations on insight, remorse, rehabilitation and his ability to ‘hoodwink’ people”: ROS at [53].

17. [66]

    The sentencing judge also had regard to a number of comparative cases relied upon by the Crown: ROS at [62]-[66].

18. [67]

    Hughes v R [2021] NSWCCA 238 (“Hughes”) involved a practice manager at a medical centre obtaining a similar amount to the applicant in 329 separate transactions over a period of six years. There was a single charge. After receiving a 25% discount, the sentence imposed was 2 years and 6 months’ imprisonment, with a non-parole period of 18 months. The sentencing judge distinguished Hughes on the following factors (ROS at [63]):

19. [68]

    R v Davies (1996) 88 A Crim R 226 (“Davies”) similarly involved fraud committed by an accountant. The offender was sentenced after trial on 18 separate counts to 6 years’ imprisonment, with a non-parole period of 4 years. The offences occurred over a 12-year period. The sentencing judge made the following observations (ROS at [64]):

20. [69]

    The sentencing judge also had regard to McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542, wherein Siwek v R [2017] NSWCCA 178 (“Siwek”), Johnston v R [2017] NSWCCA 53 (“Johnston”), Gaffney v R [2009] NSWCCA 160 and Whyte v R [2019] NSWCCA 218, amongst others, were considered. Her Honour made the following observations (ROS at [65]):

21. [70]

    Kareem v R [2022] NSWCCA 188 also involved an accountant who used his professional skills to implement his offending. However, the sentencing judge observed that the offender (in that case) was not defrauding his employer and therefore the breach of trust did not operate, and that the sentence was imposed following pleas of guilty: ROS at [66].

22. [71]

    A 10% discount was applied to the indicative sentences to reflect the utilitarian value of the guilty pleas: ROS at [10].

23. [72]

    The sentencing judge acknowledged the admissible portions of two victim impact statements provided on behalf of CTRSR and recognised the financial and reputational damage sustained by the company, in addition to the adverse impacts to staff caused by the breach of trust: ROS at [29]-[34].

24. [73]

    The hardship to the applicant’s family was a direct consequence of the applicant’s offending; however, the impact was not one that warranted any “amelioration to sentence”: ROS at [51].

25. [74]

    The sentencing judge took into account the delay of five years, noting such delay had prevented the applicant from receiving sentence and resolving his mental health: ROS at [54].

26. [75]

    The sentencing judge concluded that “[g]eneral deterrence and retribution are important considerations in planned and sustained offences involving employee dishonesty”: ROS [57].

27. [76]

    In determining the aggregate sentence, the sentencing judge observed that because each offence reflected additional serious offending, there was a need for some notional accumulation: ROS at [61].

28. [77]

    The sentencing judge made a finding of special circumstances on the basis of the applicant’s mental health diagnosis and the fact that it was his first time in custody. A ratio of 59% was imposed to give effect to the finding of special circumstances: ROS at [70].

Ground 1: the learned sentencing judge erred in finding the applicant “did not voluntarily desist” from offending and “stopped when his employment ceased”

1. [78]

   The finding complained of in ground 1 is contained in the ROS at [4], in which her Honour said:

2. [79]

   The indictment to which the applicant pleaded guilty included six representative counts. Each count particularised a date period essentially covering a calendar year, with the exception of count 6 which covered a period between 1 January 2017 and 15 March 2018.

3. [80]

   The applicant did not rely upon an assertion that he voluntarily desisted from engaging in the frauds, as a matter in mitigation. The only reference in the sentencing proceedings to when and why the applicant’s fraudulent conduct ceased is contained in the sentencing Crown’s written submissions at paragraphs 41 and 42, where it was submitted:

4. [81]

   The structure of the sentencing Crown’s written submissions sheds considerable light on the way in which the Crown relied upon the assertion that the applicant did not voluntarily desist but instead continued to offend right up until his employment was terminated (the “subject fact”). The submission was made under the heading “Period of Offending”, which was one of the factors relied upon in relation to the assessment of objective seriousness of the offences. The other factors relevant to that assessment (as stated in the sentencing Crown’s written submissions) were breach of trust, the value of financial advantage obtained, motive, the degree of premeditation, planning and sophistication, and loss of public confidence.

5. [82]

   Having addressed each of these factors, the sentencing Crown urged a finding that the objective seriousness fell “above the mid-range”. During the hearing of the appeal, the respondent acknowledged that the position advanced by the sentencing Crown was that the ongoing nature of the offending and the period of the offending were more important factors than the quantum. This position was also advanced on appeal.

6. [83]

   Clearly, the sentencing Crown sought to advance a position that the applicant had not voluntarily desisted and that the offending conduct continued up until January 2019. This was a factor (together with other factors) relied upon as aggravating the objective seriousness of the offending and therefore had to be established beyond reasonable doubt.

7. [84]

   Although the sentencing judge did not refer to the subject fact (in terms) as increasing the objective seriousness of the offending, her Honour did adopt that finding in the course of recounting the objective circumstances of the offences, observing that “all of the circumstances of the fraud are relevant”, before concluding that that “each offence” entails “a serious example of the offence provision, despite the relatively limited quantum involved”: ROS at [18], [22].

8. [85]

   It is unfortunate that her Honour was not assisted in relation to whether the subject finding was available and whether it could be established beyond reasonable doubt. However, it remains for this Court to determine whether the applicant’s complaint has been made out.

9. [86]

   The standard of review to be applied to findings of fact in sentence appeals to this Court pursuant to ss 5 and 6 of the Criminal Appeal Act, is the “reasonably open” test: Hancock v R [2025] NSWCCA 213 at [72]-[74]; Edwards v R [2026] NSWCCA 15 (“Edwards”) at [72]-[73]; Fisher v R [2026] NSWCCA 27 at [69]-[81].

10. [87]

    Here, the subject fact was being relied upon as an aggravating factor and therefore the question is whether it was reasonably open to find beyond reasonable doubt that the applicant only stopped offending because of an internal company investigation and not because he did so voluntarily.

11. [88]

    For the reasons that follow, I have concluded that it was not reasonably open to the sentencing judge to find the subject fact proven beyond reasonable doubt.

12. [89]

    Firstly, the fact that these are representative counts does not establish beyond reasonable doubt that the applicant continued to defraud the victim company up until January 2019. It can be accepted that each charge is representative only of the total misconduct of the applicant. However, each charge includes a particularised offending period, with the final count (count 6) particularised as involving a period of between 1 January 2017 to 15 March 2018.

13. [90]

    Secondly, the material referenced in the footnote to paragraph 41 of the sentencing Crown’s written submissions (namely, paragraphs 6 and 7 of the Agreed Facts) does not support the contentions advanced at paragraph 41 (or 42) of those written submissions. Paragraphs 6 and 7 of the Agreed Facts simply state that it was in January 2019 that Mr David Bell was appointed as Managing Director of CT Intelligence and Insight Pty Ltd and that on 18 January 2019, he questioned the applicant in relation to certain anomalies relating to company expenditure and suspended the applicant’s employment.

14. [91]

    There was nothing in those two paragraphs of the Agreed Facts from which an inference could be drawn one way or another as to when and how the applicant’s fraudulent conduct ceased.

15. [92]

    Thirdly, the respondent’s reliance on paragraph 13 of the Agreed Facts is misconceived. Paragraph 13 refers to the applicant’s legitimate transactions:

16. [93]

    Paragraph 14 of the Agreed Facts then goes on to capture the essence of the offending conduct:

17. [94]

    Paragraph 21 of the Agreed Facts states the following:

18. [95]

    Insofar as the respondent relied upon paragraph 21 to advance its position, the contents of that paragraph do not (either alone or in combination with other evidence) establish that it was reasonably open to the sentencing judge to make the subject finding to the requisite standard.

19. [96]

    The Agreed Facts specified the period of the deception as being between 3 January 2012 and 15 March 2018. The applicant’s employment was officially terminated on 24 January 2019. There is no evidence from which it was reasonably open to infer beyond reasonable doubt that between 15 March 2018 and January 2019, the applicant continued to offend and only ceased because he was confronted by Mr Bell in relation to the anomalies in the company expenditures.

20. [97]

    There was simply insufficient evidence from which to make any finding (either in mitigation or aggravation) about when or why the applicant’s fraudulent activity ceased.

21. [98]

    The error is material. It had the capacity to affect the assessment of objective seriousness and to potentially affect the finding of absence of remorse.

22. [99]

    It follows that ground 1 is made out.

Re-sentence

1. [100]

   Having determined that material error is established in relation to ground 1, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the objective seriousness of the offence/s, the applicant’s subjective case and the purposes of sentencing: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ). In these circumstances, it is not necessary to determine the manifest excess ground. Nevertheless, the parties’ submissions on the manifest excess ground are relevant to the re-sentencing exercise undertaken by this Court: see Edwards at [84], [86]; Snounou v R [2025] NSWCCA 231 at [99]; Britton v R [2024] NSWCCA 138 at [96].

2. [101]

   In relation to re-sentencing, the applicant relied upon an affidavit affirmed by his solicitor, Mr Joseph Giang-Nguyen on 20 February 2026. The respondent relied upon an affidavit sworn by ODPP instructing solicitor, Mr Samuel Amvrazis on 3 March 2026, which annexed relevant documents produced by Justice Health and the Department of Communities and Justice under orders made by the Registrar of this Court on 9 February 2026. Both affidavits were read on the usual basis and without objection. The contents and annexures of those affidavits are summarised below.

3. [102]

   The applicant has satisfied the compensation order in full, having paid the sum of $136,882.50 to CTRSR.

4. [103]

   Since entering custody on 25 October 2024, the applicant has had no incidents of misconduct.

5. [104]

   Since 13 November 2024, the applicant has been employed with ‘Cook Freeze’ in various positions, including general hand, leading hand and then as a clerk. As of 16 January 2025, the applicant has been responsible for managing all HACCP documentation, in addition to his regular clerical duties. The applicant has received positive feedback regarding his employment, being consistently described within a number of case note extracts from Corrective Services as a hardworking, respectful worker, who has demonstrated strong work ethic, integrity and reliability.

6. [105]

   Since the start of 2025, the applicant had been attending weekly group and one-on-one sessions with the prison chaplain to discuss ethics, community values and the importance of being helpful to others, in aims of encouraging self-reflection. In a case note extract from Corrective Services dated 25 August 2025, the prison chaplain stated that he had met with the applicant several times in the past 6 months and described the applicant’s repentance and remorse as “beyond expectation”.

7. [106]

   In relation to the applicant’s health, the applicant disclosed having lost approximately 16 kilograms since entering custody (although there was no material before this Court in support).

8. [107]

   On 1 September 2025, the applicant was admitted to the emergency department at Nepean Hospital after exhibiting symptoms of dizziness, shortness of breath and chest pains. He was discharged on 2 September 2025, with the recommendation that he see a cardiologist. The emergency department note relevantly stated that the applicant presented with chest pain, however, had normal ECG results and unelevated levels of troponins and D Dimer.

9. [108]

   On 3 September 2025, the applicant obtained a referral to a cardiologist and was placed on a waitlist. As of at least 20 February 2026, the applicant was still on the waitlist and had not yet seen a cardiologist.

10. [109]

    There were otherwise no major health issues disclosed by the applicant.

11. [110]

    Should the applicant be released from custody, he has an offer to commence employment as an Office Coordinator with an Australian charity organisation “Mahboba’s Promise Incorporated”, which is dedicated to improving the lives of vulnerable widows and orphans. This is confirmed in a letter from the organisation’s founder, Ms Mahboba Rawi, dated 19 February 2026.

12. [111]

    The applicant’s criminality was serious. His fraudulent conduct extended over a period of years as opposed to days or months. It involved a serious breach of trust. On the other hand, although there was a degree of planning it did not exceed the level of planning inherent in offences of this type. Additionally, the total amount defrauded over the period was $182,492.50. The quantum involved was moderate when considered against the range of fraud offences that come before the courts for sentence.

13. [112]

    Each offence was objectively serious. Notwithstanding the relatively low quantum in each case, the offending took place over a lengthy period and involved a substantial breach of trust.

14. [113]

    I agree with the sentencing judge that general deterrence and denunciation are important considerations in planned and sustained offences involving employee dishonesty.

15. [114]

    As to the applicant’s remorse, the evidence suggests a continuing attempt to minimise the offending conduct and a failure to accept responsibility for his actions. The applicant relied on a letter of apology tendered in the sentencing proceedings, in which he accepted he had breached the trust of his employer, and expressed embarrassment, guilt and shame. However, the applicant’s representations to the author of the SAR and to Mr Machlin (pre-sentence) suggest limited insight into his offending behaviour. Although he expressed regret, he characterised his offending as “a stupid thing”, a “lenient” approach to reimbursing himself for expenses and a “very bad practice of accounting”.

16. [115]

    The applicant continued to minimise his fraudulent conduct even after he was sentenced. In a case note extract from Corrective Services dated 1 July 2025, the applicant, in discussing his offending, reported that “during his duties he would make transitions [sic, transactions] for company expenses out of his personal account and reimburse himself due to a company policy to not issue company credit cards”. He acknowledged that this was not a professional standard practice, but claimed it was a “common and acceptable practice for this company”, and that he was not informed that his conduct was unethical until new management took over following the company restructure. He stated that he regretted his actions.

17. [116]

    These representations fall short of demonstrating a genuine acceptance of responsibility for his actions. As against that, the applicant has made reparations for the loss caused by his actions. Ultimately, I have concluded that while the applicant has expressed regret for his actions and made reparations, he has not fully accepted that his offending conduct was not simply an error of judgment, incompetence or bad practice but rather constituted a course of deceptive conduct.

18. [117]

    Notwithstanding the absence of genuine remorse, I am satisfied that the applicant has reasonably good prospects of rehabilitation. The evidence establishes that he has strong family and community support. He is assessed as a low risk of reoffending. He is a person who has materially contributed to the community. The applicant’s prospects of rehabilitation are also informed by his positive progress in custody.

19. [118]

    For the same reasons, I have formed the view that the applicant is unlikely to reoffend. The weight to be afforded specific deterrence and the protection of the community is therefore less than in many cases of this type where there has been prolonged deceptive conduct involving a breach of trust.

20. [119]

    Like the sentencing judge, I have taken into account the delay of five years between the applicant’s arrest in 2019 and the proceedings being listed for sentence in 2024 as a factor that “prevented the [applicant] receiving sentence and progressing with resolving his mental health”. The applicant suffered clinically significant depression and anxiety since investigations commenced in 2019. Mr Machlin opined that the stress of the applicant’s prolonged prosecution is one factor that contributed to his continued poor mental health.

21. [120]

    In all of the circumstances, I am satisfied that the section 5 threshold is met and that the only appropriate penalty is one of imprisonment. The appropriate aggregate term, having regard to the total criminality, exceeds 3 years’ imprisonment. It follows, that in resentencing the applicant, a term of full-time imprisonment is the only option.

22. [121]

    I make a finding of special circumstances because I am satisfied that custody would be more onerous given the applicant’s diagnosis of depression. In addition, this is the applicant’s first time in custody, and I am satisfied that a longer than usual additional term is appropriate to facilitate the applicant’s rehabilitation and reintegration into the community.

23. [122]

    Applying a 10% discount, the indicative sentences are as follows:

24. [123]

    The proposed aggregate term of imprisonment is 3 years and 9 months, with a non-parole period of 2 years. The aggregate sentence reflects a measure of notional accumulation because, although similar offending, the applicant’s conduct as represented in each count, reflects discrete offending over distinct periods of time. In determining the extent of that notional accumulation, I have had regard to the principle of totality.

25. [124]

    I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the sentence imposed in the District Court on 25 October 2024 and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 3 years and 9 months, commencing on 25 October 2024 and expiring on 24 July 2028, with a non-parole period of 2 years. The earliest date upon which the applicant will be eligible for release to parole is 24 October 2026.