Dimitriou v R

1. [1]

   MITCHELMORE JA: The applicant, George Dimitriou, seeks leave to appeal against his conviction for the offence of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), following a trial by Judge David sitting alone in the District Court at Sydney. On 26 February 2024, the applicant was sentenced to a term of 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months, backdated to 16 February 2024. The applicant also seeks leave to appeal against that sentence.

2. [2]

   At the time of the offending, the applicant was a co-director of Wyse & Young International Pty Ltd (Wyse & Young), a financial services company. The indictment averred that between 30 November 2011 and 10 March 2012, the applicant, by deception, dishonestly caused a financial disadvantage to ANZ Banking Group Pty Ltd (ANZ) in the amount of $1,867,491.50.

3. [3]

   In finding the offence proved, the trial judge found that the applicant knowingly caused false information to be submitted to ANZ in support of a loan application in the name of Pineview Property Holdings Pty Ltd (Pineview), which was used in the assessment of two loans which were approved and advanced to that company.

4. [4]

   The applicant appeals against his conviction on five grounds:

   1. (1)

      The trial judge erred in law in failing to direct herself that she needed to be satisfied beyond reasonable doubt that the applicant intended to cause ANZ a financial disadvantage, or was reckless as to that possibility, before she could convict. The applicant acknowledged that he required leave to raise this ground pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules), as his counsel at trial did not make any complaint about her Honour’s proposed directions regarding the elements of the offence.

   2. (2)

      The trial judge erred in failing to have proper regard to directions about the significance of the applicant’s good character.

   3. (3)

      The trial judge erred in failing to have proper regard to directions as to the reliability of evidence given by David Winiata, a Business Banking Manager at ANZ, and by Terri Dawson (formerly Terri Winiata), who was married to Mr Winiata at the time the Pineview loan was submitted and was a residential mortgage broker. The trial judge found that Mr Winiata and Ms Dawson were, or may have been, involved in the preparation of the loan application and implicated in aspects of the deception.

   4. (4)

      The verdict was unreasonable, in support of which the applicant relied on four particulars:

   5. (5)

      In the alternative to the first particular of ground 4, a miscarriage of justice was occasioned by the variance between the indictment, the case run by the Crown, and the directions given by the trial judge.

5. [5]

   The applicant seeks leave to appeal against his sentence on three grounds, two of which were put in the alternative:

   1. (1)

      The trial judge took into account an irrelevant consideration, namely, deception on the part of the applicant other than the operative deception of ANZ (ground 6).

   2. (2)

      In the alternative, her Honour took into account an irrelevant consideration, or acted on a wrong principle, in taking into account (in substance) a breach of trust in relation to Susan Huybers, a client of the applicant, as aggravating the offending (ground 7).

   3. (3)

      The trial judge acted on a wrong principle in concluding that the need for specific deterrence was not mitigated by: (a) the unlikelihood of the applicant reoffending; (b) his prior good character; and (c) the fact that he had not offended since the offence charged (ground 8).

6. [6]

   I will first address the trial and the grounds of appeal that relate to the applicant’s conviction before moving to the sentence and the associated grounds of appeal. The grounds of the conviction appeal require me to address in some detail the Crown case and the trial judge’s reasons for concluding that the offence was proved beyond reasonable doubt.

The evidence and the trial judge’s factual findings

1. [7]

   References to paragraph numbers below are to the trial judge’s reasons for judgment on verdict.

2. [8]

   In September 2011, in the context of his work with Wyse & Young, the applicant was introduced to Susan Huybers through her brother, Neil Arnott (as he was known at the time of the relevant events; he has since changed his surname to “Maklafferdich” and gave evidence under that name). Mr Arnott engaged the services of the applicant to obtain a loan. Ms Huybers agreed to guarantee the loan and to provide security in the form of a second mortgage over her home in Queensland: at [63].

3. [9]

   Ms Huybers (who used her maiden name Arnott on some documents) gave evidence in the trial about her personal circumstances at that time, which the trial judge summarised in [64]:

4. [10]

   The extensive documentary evidence in the trial included emails from the applicant to Ms Huybers commencing in September 2011, in which he sought identification and financial information. On 17 September 2011, Ms Huybers emailed the applicant her PAYG Summary (group certificate) from the café for 2010-2011, in response to his request for a notice of assessment. The trial judge found that Ms Huybers’ provision of the group certificate was consistent with her evidence that she did not know what a notice of assessment was: at [75]. In another email to the applicant, Ms Huybers said that she did not earn any money before that time.

5. [11]

   On 29 September 2011, Ms Huybers and Mr Arnott flew from Brisbane to Sydney and attended a meeting at the Wyse & Young office in Bella Vista: at [78]. According to Ms Huybers, a number of other persons were present including Gerard Quin (who was introduced as the applicant’s accountant), Mr Winiata (who was introduced as “the ANZ Business Banker”) and Andrew Jetson (who was introduced as the applicant’s offsider and an accountant). Ms Huybers gave evidence that she remembered signing documents in the boardroom that day. She recalled signing a Wyse & Young Appointment Letter and Costs Agreement, and she thought she also signed other documents but did not remember: at [84].

6. [12]

   The appointment letter that Ms Huybers recalled signing was addressed to Mr Arnott, Ms Huybers, and three companies. For two of those companies, Green Global Constructions Pty Ltd (Green Global) and Union Steel Pty Ltd (Union Steel), Ms Huybers was identified as the Director. Green Global was a shelf company that Mr Arnott set up in January 2010, while Union Steel was registered on 27 September 2011: at [86]. Ms Huybers signed this document in both her own name and on behalf of Union Steel and Green Global.

7. [13]

   ANZ approved a business mortgage loan to Green Global in the amount of $500,000, secured by a second mortgage over Ms Huybers’ Enderley Road Property. On 10 October 2011, the applicant signed a letter on behalf of Ms Huybers directing disbursement of the loan amount, which Ms Huybers said in evidence reflected her wishes for distribution: at [89]. In a letter to Ms Huybers dated 11 October 2011, Mr Winiata confirmed the details of the loan facility and monthly repayment amounts which would be debited from a bank account in the name of Green Global.

8. [14]

   The Crown alleged that, some time before 2 December 2011, a further loan application was made in Ms Huybers’ name, comprising a refinance of her existing $400,000 home loan with NAB and an additional $600,000. This loan application was of some factual significance to the subsequent loan application to ANZ that was the basis of the charge against the applicant.

9. [15]

   Ms Huybers gave evidence that she decided, at her brother’s suggestion, to transfer her $400,000 loan with NAB to ANZ: at [91]. On 3 November 2011, Mr Winiata sent an email to Ms Huybers which stated that he was about to process her home loan refinance “and also set up a facility for further property purchases” and asked her to attend a NAB branch to obtain an updated loan statement. When asked about this email, Ms Huybers said that she had discussed a facility for further property purchases with the applicant but not in any detail: at [109]. There were other emails between Ms Huybers and the applicant in November 2011 in which she variously expressed concern about her brother repaying the $500,000 loan and also asked for advice about how she could make some money.

10. [16]

    On 4 November 2011, Ms Huybers emailed the applicant and provided him with the log on details for her NAB account, writing: “because I trust you and b/c you probably know all my finances better than I do anyway”. Ms Huybers said that she sent the applicant this email to progress Mr Winiata’s request of the day before, “except my understanding what it was, was it was just for the $400,000 transfer” (Tcpt 13/06/23 p 578): at [111].

11. [17]

    The Crown case was that before 2 December 2011, Ms Dawson, who was a residential mortgage broker, applied for a loan on behalf of Ms Huybers for $1,005,000. Neither the loan application nor the supporting documents that were provided to ANZ at or around the time of that application or upon its approval were in evidence. The Crown did tender a facsimile dated 2 December 2011 from the ANZ Originator Services Unit of ANZ to Ms Dawson, informing Ms Dawson that the loan application was approved subject to a number of conditions, from which it was reasonable to infer that Ms Dawson was the contact on the loan application. Mr Winiata’s evidence was that Ms Dawson was the broker for this loan application because it was a home loan, and as a business banker he could only process business loans.

12. [18]

    The indicative loan details in the ANZ approval letter specified that the loan was divided into two parts, a loan of $405,000 and a line of credit for $600,000. The conditions to be satisfied included, relevantly, verification of Ms Huybers’ income and the business and personal tax returns for the last two years. There was no documentary evidence before the trial judge as to what (if any) additional material was provided to ANZ in satisfaction of the stipulated conditions. However, Mr Winiata gave evidence that for Ms Huybers to have received a collective loan of over one million dollars, ANZ would have had to receive “financials, so her personal returns, tax returns, and also company financials as well” (Tcpt 20/06/23 p 814).

13. [19]

    Mr Winiata’s evidence was that he received documents by email from the applicant “to be able to send them onto ANZ or a credit process” (Tcpt 20/06/23 p 814-815). In response to a question in chief as to whether he had any specific memory of seeing the documents relied on for this loan, Mr Winiata said (Tcpt 20/06/23 p 816):

14. [20]

    Ms Huybers’ evidence was that in December 2011, she was aware that efforts were underway to transfer her NAB debt to ANZ, but she only became aware of the $600,000 loan in 2012: at [126]. In an email to the applicant dated 6 January 2012, copied to Ms Huybers, Mr Winiata stated that settlement of the ANZ loan would take place on 9 January 2012.

15. [21]

    In 2009, Frank Rubino was introduced to the applicant through his solicitor, Salvatore Russo. At the time, Frank Rubino’s parents, Alfio and Biagina Rubino (both of whom were deceased by the time of the trial (I will refer to them collectively below as the Rubinos)) were behind in their loans to ANZ in respect of a number of businesses and properties, in the order of approximately $6 million. Three of the properties owned by the Rubinos were relevant to the applicant’s trial:

    1. (1)

       a property in Calderwood Road, Galston (Calderwood Property), which is where the Rubinos resided;

    2. (2)

       a property in Pine Valley Road, Galston (Pine Valley Property) which according to Frank Rubino was subdivided from the Calderwood Property (once a single, ten-acre lot); and

    3. (3)

       a property in Arcadia Road, Arcadia (Arcadia Property), where Frank lived with his wife, Lee (who was deceased by the time of the trial).

16. [22]

    The applicant tendered documents in the trial showing that between November 2010 and 9 March 2012, the Rubino family incurred debts to him or businesses associated with him, including the following:

    1. (1)

       On 10 November 2010, Lee Rubino borrowed $148,944 from the applicant, at an interest rate of 48%, purportedly on the security of a mortgage over the Arcadia Property, which Lee Rubino did not own (the mortgage was witnessed by Alfio Rubino). A document in the form of a loan statement dated 10 May 2012, with the applicant’s personal details on the letterhead and addressed to Lee Rubino and Alfio Rubino, and Rubino Holdings Pty Ltd, indicated that by 10 January 2012 the outstanding amount of the loan was $287,329.40.

    2. (2)

       On 26 July 2011, Wyse & Young Accounting (described on the letterhead as “A Division of Wyse & Young International”) issued an invoice to “Frank, Anthony and Alfio Rubino, Rubino Holdings Pty Ltd” for $140,800, with the descriptor “Saved debt fee pursuant to the Retainer Agreement dated 17 January 2011”, in respect of the “Rubino Holdings Peter Lane Sale”.

17. [23]

    Mr Rubino gave evidence that between July 2011 and March 2012, the applicant was “chasing” him “for all sorts of money” (Tcpt 19/07/23 p 1339).

18. [24]

    Following a protracted period of attempted sales and negotiations with ANZ, on 19 December 2011 the Rubinos reached an agreement with ANZ. Frank Rubino gave evidence that his parents agreed with ANZ that by 16 January 2012, they would pay ANZ $1,050,000 in respect of the Pine Valley Property, and $1,650,000 for the Arcadia Property. If they did not pay those amounts, ANZ would repossess and sell both properties.

19. [25]

    In late December 2011, Frank Rubino met with the applicant and explained the agreement with ANZ and the need for urgency and suggested that the applicant obtain more details from his solicitor, Mr Russo. Frank Rubino stated that he met with the applicant, who had spoken to Mr Russo, and “they said everything would be alright, ‘We’ll get a short term lender in to finance it, and then we’ll get – maybe further down the track, you know, we’ll try and find some other finance’” (Tcpt 11/07/2023 p 1084).

20. [26]

    On 22 December 2011, the applicant sent Mr Winiata an email titled “Thoughts and Deadline 10 January”. In that email, the applicant referred to a conversation with Mr Winiata and wrote, relevantly (I have made some changes to the formatting):

21. [27]

    In reply to this email, Mr Winiata stated that they would need to act on the loan immediately to meet the 10 January 2012 deadline and asked the applicant to ring him to discuss.

22. [28]

    In the early hours of 31 December 2011, the applicant sent another email to Mr Winiata. The applicant reproduced some of the information from his email of 22 December 2011 regarding the loan status and value of the three properties, and proposed a structure whereby both the Pine Valley and Arcadia Properties would be sold “to someone on trust”. In relation to the Pine Valley Property, the applicant wrote: “probably use Susan in a Trust Set up – Susan – can be the private lender the family will pay her the fees for that probs [probably] 20k for her trouble”. The applicant also suggested that a friend of his, Danny Kalischer, be used (also in a “Trust set up”).

23. [29]

    The applicant’s intention as expressed in the email was that on settlement, the unencumbered Calderwood Property would be transferred to a trust, and then a refinance could be done to pay back the trustee directors “for the use of [their] money”. The applicant proposed that the moneys to be raised on the refinance would include the moneys needed to repay the short-term loans, but also $200,000 for “my outstanding lend amount” (see [22] above), $28,000 being outstanding “‘fees lender” payable to Mr Kalischer, the return of a 20 per cent deposit if paid by Mr Kalischer on the Arcadia Property, money to cover interest and costs and stamp duty, and “3% of total lend amount split between you and I”. The applicant also relevantly wrote:

24. [30]

    In his reply email, Mr Winiata relevantly stated that he “loved the structure”. He also wrote that he had “everything for Susan” (consistently with the evidence he gave at the trial that he received her financial information for the earlier ANZ loan for $1,005,000) and asked for notices of assessment for Mr Kalischer for 2010 and 2011. Mr Winiata proposed submitting the deals on 1 January, likely through ING “to keep it separate to ANZ”. When the applicant replied at 2.13am, stressing the urgency and that they only had until 9 January 2012 to settle, he also wrote:

25. [31]

    Mr Winiata responded at 8.31am, stating that any loans would need to be residential rather than business loans given both Ms Huybers and Mr Kalischer already had $500,000 business facilities, and that he was happy to put the loans through ANZ. Mr Winiata told the applicant that he needed to know exactly what the applicant wanted to do.

26. [32]

    Ms Huybers’ evidence was that the applicant first told her about the Rubinos in about December 2011, telling her that they were good people and he wanted to help them “to not lose all their properties or something” and that she might be able to buy the Arcadia Property and subdivide it as a good way of making money (Tcpt 05/06/23 p 195-197). On 24 December 2011, she flew to Sydney with her children for four or five days. On 31 December 2011 (being the same day on which the applicant and Mr Winiata exchanged the above emails in the early hours of the morning), Ms Huybers was picked up by a car that the applicant arranged and was driven to the Arcadia Property, where she met the applicant and Mr Jetson: at [121]. The applicant, Mr Jetson, and Ms Huybers then travelled to the Galston properties, where the applicant introduced Ms Huybers to Frank Rubino. According to Frank Rubino, the applicant said that Ms Huybers was a “private lender” (Tcpt 11/07/23 p 1084). Ms Huybers said that she and the applicant and Mr Jetson then returned to the applicant’s Bella Vista office, where they had some champagne and talked for a while: at [122].

27. [33]

    On 2 January 2012, Ms Huybers had lunch with the applicant and Mr Jetson, during which she recalled some discussion about the Arcadia Property: at [122]. In an email to Mr Jetson dated 3 January 2012, Ms Huybers asked when the applicant and Mr Jetson would have time to talk to her about Mr Arnott (who had made no repayments on the $500,000 loan as at December 2011), and “when you want me to sign anything about buying the Rubino property”. She gave evidence that, at this time, she was interested in buying the Arcadia Property with a view to subdividing and renovating it. In cross-examination, she agreed that she had an intention to lend money at this time for the Arcadia Property “but that [it] would be discussed further. Not that it would just — money would just be borrowed of mine and lent without me knowing” (Tcpt 06/06/23 p 298).

28. [34]

    On 6 January 2012, the applicant sent further emails to Mr Winiata about the structure of the proposed borrowings. In one of those emails, which the applicant sent at 12.36pm, he referred to needing to settle the Arcadia Property by 13 January 2012. He suggested that settlement could be expedited using Ms Huybers because she “was already approved and ANZ hold her details already in Resi [residential] and Business”. He also suggested that the sales contract for that Property could be dated back 45 days “so as also it will correlate with Heybers [sic] reasons for surplus investment funds back when you had that one approved”. In a statutory declaration dated 29 November 2011, Ms Huybers had stated that any funds she borrowed “will be used for the purpose of investment property, in order to take advantage of the deflated real estate market and to build a property portfolio”. Her evidence in the trial was that the applicant had rung her while she was at work and told her that she needed to prepare a statutory declaration urgently and have it witnessed, reading out over the phone what it needed to say: at [117].

29. [35]

    On 9 January 2012, Pineview was registered with ASIC. Ms Huybers was the sole director: at [129]. Ms Huybers gave evidence that in January 2012, the applicant asked her to be involved in Pineview, that she and the applicant would be the directors, and that she could “make some money” by purchasing and renovating the Arcadia Property (Tcpt 05/06/23 p 209-210).

30. [36]

    On 10 January 2012, at 3.44pm, either Mr Winiata or Ms Dawson faxed a loan application to ANZ on behalf of Pineview as trustee for the Pineview Trust to borrow $2,000,720 on the security of first registered mortgages over the Calderwood Property and the Pine Valley Property. The application included an Online Supporting Document Kit under the name “Susan Elizabeth Huybers – Pineview Property Holdings atf Pineview Trust”, together with a number of supporting documents. The application documents were signed by Ms Dawson as the broker, but the evidence of Ms Dawson and Mr Winiata was that Mr Winiata had filled in the information on the forms.

31. [37]

    The application was also purportedly signed by Ms Huybers. However, Ms Huybers gave evidence that she had not signed the application. During his evidence, Mr Winiata admitted that he had forged Ms Huybers’ signature in various places on the loan application (Tcpt 22/06/23 p 965). In re-examination, when asked if any person influenced his decision to engage in the forgeries, Mr Winiata said (T 23/06/23 p 983):

32. [38]

    Ms Dawson gave evidence that when she signed the application, Ms Huybers’ signature was already on the document, and her husband assured her that he had seen Ms Huybers sign the document: “That was the only reason I signed it” (Tcpt 12/07/23 p 1136). She also referred to Mr Winiata telling her that the application needed to be submitted as soon as possible, “because the client who was a friend of [the applicant’s] was in financial difficulty” (Tcpt 12/07/23 p 1138).

33. [39]

    In response to a question in an early part of the form requiring a brief description of the borrower’s purpose for the loan and objective, the application stated:

34. [40]

    As the trial judge noted at [8], the Crown alleged that this statement of the purpose of the loan was deceptive:

35. [41]

    In the section of the loan titled “Personal Statement of Financial Position”, the application recorded Ms Huybers’ gross annual income as $222,096. In relation to Pineview, Ms Huybers was listed as the sole shareholder and director of the company. The form listed the $500,000 ANZ loan to Green Global and the $1,005,000 loan to Ms Huybers (wrongly recorded as $1,050,000). There was also a section titled “Guarantor Checklist”, which listed Ms Huybers as the guarantor and stated that Ms Huybers had attended an interview on 30 November 2011. Ms Huybers gave evidence that she had never met Ms Dawson or had a phone conversation with her: at [131]. Ms Dawson accepted that she had not held an interview with Ms Huybers and that she never met or communicated directly with Ms Huybers: at [276]. This document also stated that Ms Huybers was “self-employed” in construction.

36. [42]

    The application attached a number of documents which the Crown alleged contained false information, which the trial judge listed at [6]:

    1. (1)

       an individual tax return for Ms Huybers for the 2011 financial year;

    2. (2)

       an ATO notice of assessment for Ms Huybers for the 2011 financial year, which stated that she had a taxable income of $222,085;

    3. (3)

       a company tax return for Green Global for the 2010 financial year, which stated that its annual income was $852,315;

    4. (4)

       a company tax return for Green Global for the 2011 financial year, which stated that its annual income was $1,572,781;

    5. (5)

       financial statements for Green Global for the 2010 and 2011 financial years, which contained the same figures as presented in the company’s tax returns;

    6. (6)

       a contract for sale of land for the Calderwood Property, dated 7 December 2011 and indicating payment of a deposit of $135,050;

    7. (7)

       a contract for the sale of land for the Pine Valley Property, dated 7 December 2011 and indicating payment of a deposit of $115,040;

37. [43]

    I have set out above Mr Winiata’s evidence that he had received the “financials” relating to Ms Huybers in the context of the previous loan application. Mr Winiata also gave evidence that it was “most likely” that he received the contracts of sale for the Calderwood and Pine Valley Properties by email from the applicant (Tcpt 20/06/23 p 843).

38. [44]

    By way of background, Ms Huybers gave evidence that, during the meeting at the applicant’s office in Bella Vista on 26 September 2011, the applicant offered to do her tax and said that she would get a refund. She understood at the date of the meeting that he was to be her accountant: at [83], [106]. In early November 2011, Ms Huybers forwarded to the applicant her tax return and notice of assessment for the 2009 financial year, which she had received from her former accountant. She had emailed her former accountants to request this document, letting them know that “I have someone new looking after my tax and he needs my last ‘notice of assessment’”: at [104]. That notice of assessment, dated 12 August 2010, stated that Ms Huybers’ taxable income for that financial year was $3,281 and that she was entitled to a credit of $284.00.

39. [45]

    On 15 November 2011, Navneet Kaur, of Wyse & Young, sent an email to Ms Huybers attaching draft tax returns for the 2010 and 2011 financial years. Ms Huybers recalled liaising with Ms Kaur about her tax returns because she was going to get a refund: at [97]. The draft return for the 2010 financial year stated that her taxable income was $160. The draft return for the 2011 financial year stated a taxable income of $19,213 (predominantly comprising her earnings from the café). Both returns estimated that Ms Huybers would receive a tax refund. As the trial judge noted at [107], the unchallenged evidence was that these tax returns were never lodged.

40. [46]

    The tax return for Ms Huybers for the 2011 financial year that was submitted with the Pineview loan application was dated 20 September 2011 and gave her occupation as “Director – managing” with Green Global. As the Crown observed in its written submissions on the appeal, Ms Huybers was not appointed as a director of Green Global until at least 29 September 2011. This document also stated that Ms Huybers’ gross salary was $189,152, when the income reflected in the draft tax return prepared by Ms Kaur was substantially lower, consistently with what Ms Huybers had indicated about her income (see [45] above). It also referred to Ms Huybers receiving rental income from “86 Enderley Ave, Clayfield” (the correct street name was Enderley Road), when, as the Crown pointed out, Ms Huybers did not rent out the Enderley Road Property during this period (her evidence was that she rented it from mid-2011 to mid-2012). The stated final gross income for Ms Huybers was $222,085, a far larger figure than was set out in the draft notice of assessment that Ms Huybers received from Ms Kaur.

41. [47]

    The return identified Mr Quin as the tax agent. He gave evidence in the trial that he became a registered tax agent in about 2006 and started working with the applicant in around July 2011: at [287]. There was no formal employment arrangement in place, and Mr Quin brought his own computer to the office and prepared returns using software that he licensed and which was password-protected: at [291].

42. [48]

    Mr Quin could not recall ever communicating with Ms Huybers, and before attending court he checked his invoices and found no reference to her: at [303]. He was shown the 2011 tax return and denied any involvement in preparing it: at [307]. His evidence was that he would not have written “The Manager” in the contact name section of the form, but would always put his name: at [305]. The client reference on the document (“HUYB0001”) was also not consistent with the software he used, but rather with “HandiTax” software that Ms Kaur used: at [306].

43. [49]

    The trial judge accepted Mr Quin’s denial of any involvement in preparing the return: at [353]. Her Honour also accepted the evidence of Mr Jetson that he did not believe he saw any individual return of Ms Huybers before March 2012 and denied preparing it: at [352]. Another accountant, Wi (“Kathy”) Jiang, who worked at Wyse & Young between October 2010 and April 2013, gave evidence that she had never seen the document before it was shown to her in 2016, and that Ms Huybers was not her client: at [352].

44. [50]

    Ms Huybers gave evidence that she was not aware of this tax return document before 10 January 2012: at [130].

45. [51]

    Her Honour found that the document contained false information and was deceptive: at [347], [355].

46. [52]

    The same income figure for Ms Huybers as was stated in the 2011 tax return submitted with the Pineview loan application was repeated in a Notice of Assessment purportedly issued by the Australian Taxation Office (ATO), dated 20 September 2011. John Vuceric, a Senior Information Officer at the ATO, confirmed that he had accessed and searched the ATO system and that no tax return had been lodged on Ms Huybers’ behalf for between 1 July 2009 and 30 June 2013. It followed that the notice of assessment could not have been generated by the ATO: at [358]. Ms Huybers’ evidence was that this document would have come as a surprise to her if she had received it in September 2011: at [359]. The trial judge found that this document was false: at [363].

47. [53]

    The 2011 tax return for Green Global that was submitted with the Pineview loan application stated that the company’s main activity was “Other House Constructions”. That was not its main activity; indeed, the company did not trade. Nonetheless, the tax return stated an income of $1,572,781 and expenses of $1,199,878, resulting in a profit $372,903. Those figures were reflected in the financial statements for Green Global for the 2011 financial year, which was on the letterhead of “Wyse & Young Accounting”.

48. [54]

    Similarly to the 2011 tax return, the 2010 tax return for Green Global stated that the company’s main activity was “Other Residential Building Construction”. The 2010 financial statements listed Ms Huybers as the “Public Officer”, despite her not yet being appointed a director. The company’s stated income for the year was $852,315 and its expenses were $556,667, resulting in a profit $293,648. Those figures were reflected in the financial statements for Green Global for the 2010 financial year, which were also on the letterhead of “Wyse & Young Accounting”.

49. [55]

    As the sole director of Green Global, Ms Huybers gave evidence, accepted by the trial judge, that she was not aware of the existence of any of these documents before 10 January 2012: at [365], [373], [383]. Mr Vuceric’s evidence was that the ATO did not receive any tax returns for Green Global between 1 July 2009 and 30 June 2013: at [370]. Mr Quin, whose name was on the two returns as the tax agent, denied having seen these documents before the police showed them to him, and denied having any involvement with Green Global: at [369], [379]. Mr Jetson could not recall when he first became aware of Green Global, but he did not recall seeing any tax returns and he said he did not do tax returns: at [366].

50. [56]

    In relation to the financial statements, Mr Jetson agreed that he saw financial statements during his time at Wyse & Young but said that he was not involved in their preparation: at [385]. Ms Jiang gave evidence that she was asked to complete financial statements from time to time, but she had not seen these particular documents before 31 October 2016: at [386]-[387]. Mr Quin denied having any involvement in the preparation of the financial statements, noting that they were on Wyse & Young letterhead and he did not have that on his computer program and was never asked to include it: at [388]. If he had prepared the document, it would have had his name and address on it: at [389].

51. [57]

    The trial judge found that each of these four documents contained false information: at [393], [402].

52. [58]

    The loan application attached the cover sheets to two contracts for sale, relating respectively to the Calderwood Property and the Pine Valley Property. The contracts nominated the Rubinos as the vendors and Pineview as the purchaser. Both were dated 7 December 2011, which was approximately one month before Pineview was incorporated.

53. [59]

    The vendor’s agent was listed as “Apple T Real Estate”. Harjeet Singh, a director of Apple T Real Estate, gave evidence at the trial that he met the applicant in 2010 or 2011 and that he referred clients who wanted refinancing to the applicant. However, he had never had clients by the name of Biagina Rubino or Alfio Rubino; nor did he have any dealings with Pineview. Mr Singh also gave evidence that he had never received deposits for either of the Calderwood Property or the Pine Valley Property, which he confirmed by a search of his trust account for both addresses.

54. [60]

    The trial judge found that the two contracts contained false information: at [416]. Her Honour was also left in no doubt that the applicant was responsible for the creation of the contracts, noting that he was the only person who knew Mr Singh and Apple T Real Estate. Her Honour also reached this view having regard to the role of the applicant as “the driving force behind the structure of the loan arrangement”: at [415].

55. [61]

    By fax dated 11 January 2012, ANZ acknowledged receipt of the loan application on behalf of Ms Huybers and estimated a response by 13 January 2012. However, it sent a subsequent letter noting that the application had been “transferred over” two files due to the involvement of a company (Pineview), and provided a revised estimated response date of 18 January 2012. On 12 January 2012, Ms Dawson sent a fax to ANZ titled “Urgent Escalation”, requesting: “please escalate this file to be assessed ASAP as settlement date is on Monday 16th January 2012. If I am able to receive an indicative approval by 13th January this will help with extending the settlement date”.

56. [62]

    On 13 January 2012, an assessment officer at ANZ sent a fax to Ms Dawson informing her that the loan application was declined. The basis for declining the loan was that the guarantor checklist submitted with the loan had ticked a box that the guarantor was under pressure to provide the guarantee. The assessment officer also raised other issues, including:

57. [63]

    Mr Winiata sent an email to the applicant, the date of which is not apparent, notifying him that a number of points needed to be completed before a full approval could be issued and asking for this information “over the weekend” (13 January 2012 was a Friday). The information he requested included the matters I have extracted above from the ANZ loan assessor’s fax to Ms Dawson. On 15 January 2012, the applicant forwarded Mr Winiata’s email to Ms Huybers, stating that “Andrew”, presumably Mr Jetson, would prepare the first document (being the letter as to loan purpose), and Andrew would also send her the trust deed. The applicant also wrote, “[w]e will need you to if possible find a solicitor up there tomorrow to assist”.

58. [64]

    On the evening of 15 January 2012, the applicant wrote a lengthier email to Ms Huybers which stated:

59. [65]

    There are a number of troubling aspects of this communication, which the trial judge observed at [136]. Among other things, the applicant did not join in lending any money to the Rubinos on these transactions. The $1,050,000 investment, assuming it is a reference to the Pine Valley Property (that amount corresponding to the amount the Rubinos owed to ANZ), was not made through Defined Properties Investment, rendering meaningless the applicant’s representation that as the director of that company he was guaranteeing “all investors monies as I always do”. Defined Property Investment also did not give Ms Huybers a charge for any funds she contributed. As the trial judge stated, “[c]ontrary to the email Ms Huybers was not ‘covered two fold’”. Additionally, as the trial judge found, the applicant’s representation to Ms Huybers, that the monies she loaned for the Pine Valley Property would be immediately repaid with interest following the purchase of the two Galston properties by Pineview, did not eventuate: when the loan settled on 9 March 2012, none of the money was used to repay her.

60. [66]

    On 16 January 2012, Mr Jetson emailed Ms Huybers, letting her know that the trust deed had been sent to her email address “per instructions from [the applicant]” and asking her to organise signing and return “per his overnight instructions”. Ms Huybers was shown in her evidence a signed copy of a Trust Deed for Pineview Trust, which named Pineview as the trustee and Ms Huybers as the specified beneficiary, and she agreed that she signed the document. She said that she did not understand why she was signing it, but she trusted the applicant (Tcpt 06/06/23 p 297-8). On 17 January 2012, Ms Huybers signed a declaration regarding a corporate guarantee from Green Global (another of the matters that the ANZ loan assessor required), using wording that the applicant gave her over the phone. Ms Huybers gave evidence that she thought the document was “just for, you know, setting things up in the future” (Tcpt 05/06/23 p 213).

61. [67]

    On 17 January 2012, $1,050,000 was deposited into an account for “Rubino Holdings Pty Ltd”, comprising a cheque for $480,000 from Serinda Pty Ltd (associated with Danny Kalischer) and a cheque for $570,000 dated 16 January 2012 with Ms Huybers’ name written on the back. The Crown alleged that this totalled the $1,050,000 required to discharge the ANZ mortgage over the Pine Valley Property (consistently with the applicant indicating in his 15 January email to Ms Huybers that this property would be settled first). Frank Rubino gave evidence that he initially thought that Ms Huybers came up with all of the money, although he subsequently found out that Mr Kalischer contributed about half (Tcpt 11/07/23 p 1085, 1090). Frank Rubino also gave evidence that there was no agreement in place at that time regarding repayment of the $1,050,000.

62. [68]

    On 15 January 2012, Wyse & Young Accounting issued an invoice to the Rubinos and Frank Rubino for $34,982, with the description “Professional Services Rendered pursuant to our cost agreement for the obtaining of the loan approval of $1,050,000”, described as “3% Loan fee of $1,050,000 + GST”.

63. [69]

    On 1 February 2012, Ms Dawson sent a fax to ANZ in response to the requisitions raised on 13 January 2012. On the cover sheet, Ms Dawson wrote that she had incorrectly completed the guarantor checklist and that Ms Huybers was not under pressure to complete the application. Attached to the fax were copies of property valuations for the two properties dated 12 January 2012, a copy of the trust deed for the Pineview Trust, and a letter dated 12 January 2012 on Wyse & Young letterhead, signed by the applicant. The letter stated:

64. [70]

    The Crown alleged that this letter also contained false information given the true purpose of the loan, and formed part of the deception: at [423]. The trial judge found that the suggestion in the letter, that the loan was for long term property investment, was deceptive: at [427]. The “true purpose”, as her Honour found in [434], was “to assist the Rubino family and also apply the borrowed funds in payment of the outstanding fees and debts said to be owed by the Rubino family to the accused and others”.

65. [71]

    By fax dated 9 February 2012, ANZ notified Ms Dawson of its approval of an “Investment Loan Variable” for $1,080,400, and a second loan for $920,320. Two versions of an internal ANZ document titled “Consumer Company Loan Proposal” were in evidence. The first was prepared by a loan assessor and dated 13 January 2012, while the second, which was dated 3 February 2012, contained the same information as the first version together with updated information following receipt of the additional material on 3 February 2012. The assessment included reference to the income of Ms Huybers and the profit made by Green Global as representing a combined income of $562,055 to service the loan. The assessment also referred to receipt (on 3 February 2012) of the letter from “the applicant’s accountant confirming that pineview doesn’t trade and it will also be related to the purchase”. The notes at the conclusion of the second version of the document under the heading “Justification” included:

66. [72]

    ANZ sent two letters dated 14 February 2012 to Pineview ATF Pineview Trust, using the Bella Vista address of Wyse & Young, confirming approval of the two loans. Ms Huybers gave evidence that on 23 February 2012, she drove to the Gold Coast to meet Mr Kalischer in order to sell a car to an associate of his. She was having coffee with Mr Kalischer and two others when Mr Kalischer asked the others to go away and told her that he had some documents for her to sign, at the applicant’s request (Tcpt 06/06/23 p 257). Ms Huybers recalled a bundle with “sign here” stickers on it. She thought that she was signing documents “to progress borrowing money to invest”, although when asked how much money she was borrowing she said she did not know (Tcpt 06/06/23 p 263).

67. [73]

    On 4 March 2012, Mr Winiata emailed the applicant seeking a signed guarantee from Ms Huybers in respect of the $1,080,400 loan. The applicant replied, “I hold all documents and copies in my office I will check and send to you if there”. According to subsequent correspondence from the ANZ to Pineview dated 29 October 2013, settlement of the two loans took place on 8 March 2012. In relation to the respective loans:

    1. (1)

       The first loan (ref 710-659-478) was for $1,080,400, secured by a first registered mortgage over the Calderwood Property, with a guarantee and indemnity from both Ms Huybers and Green Global. After bank fees and charges, $1,074,663.80 was available at settlement. The entire amount of those funds was paid by cheque to Wyse & Young Accounting.

    2. (2)

       The second loan (ref 710-659-490), was for $920,320, secured by a first registered mortgage over the Pine Valley Property, again with a guarantee and indemnity from both Ms Huybers and Green Global. After bank fees and charges, $915,887.20 was available at settlement. Two cheques were directed to be drawn on settlement in relation to those funds, $123,059.50 to Wyse & Young, and $792,827.70 to Wyse & Young Accounting.

68. [74]

    The trial judge found that the applicant had a significant interest in the Pineview loans being approved and that the degree to which he benefited was “consistent with him being the controlling hand in what unfolded”: at [443]. Her Honour stated:

The judgment on verdict

1. [75]

   Her Honour gave herself a number of directions, which I will address below in so far as they were relevant to the grounds of appeal. In relation to the elements of the s 192E(1)(b) offence, her Honour directed herself that in order to prove the offence in s 192E(1)(b), the Crown must prove beyond reasonable doubt that: the accused; by deception; dishonestly caused a financial disadvantage: at [12].

2. [76]

   After summarising the evidence of the various Crown witnesses as I have noted above, her Honour found that documents provided in support of the Pineview loan application contained multiple falsities. Her Honour found that the falsities were intended to deceive ANZ as to the purposes of the subject loans and the capacity of Ms Huybers, through Pineview, to service them. Her Honour found that the applicant used Ms Huybers as a figurehead for Green Global which, to his knowledge, never traded: at [453]-[454].

3. [77]

   The trial judge found that the applicant knew of Ms Huybers’ limited financial means and that she had no capacity to service the Pineview loans. Her Honour found that there was “a compelling body of documentary evidence” to establish that “the accused would have well known that the loan application … was deceptive”: at [455]. The judge referred to the documents containing false information purporting to identify a capacity to service such a loan. The applicant’s dealings with Mr Rubino exposed the deception that the loan was never a long-term investment for Ms Huybers, with his emails contemplating that she would effectively hold the two properties on trust for the Rubinos, as a private lender: at [456]. Her Honour also found that there was a significant body of evidence to establish that the applicant was responsible for the preparation and provision of the documents submitted with the loan application: at [457].

4. [78]

   In relation to the element of deception, the trial judge was satisfied that the applicant submitted the Pineview loan application knowing that the loan application was deceptive in that it contained false information: at [458]. Her Honour noted that it was not necessary for the deception relied upon to operate on the mind of an identified person or a representative of the relevant entity, citing R v SKL; R v JY; R v XGL [2019] NSWCCA 43 at [28]-[29], [62], [68] (Adamson J): at [459]. The applicant’s reliance on the absence of evidence from ANZ as to any financial disadvantage was thus not a matter that her Honour took into account: at [459].

5. [79]

   In relation to the element of dishonesty, the trial judge was satisfied that the evidence established that the applicant knew that the Pineview loan application did not reflect Ms Huybers’ true financial reality or intentions, nor did it reflect what he intended was to occur with the loan proceeds. The applicant knew the loan application was contrary to the expressed written intention and was therefore dishonest: at [460]. Her Honour relied upon the deception referred to above as evidence of dishonesty, and found that the applicant would have known that any loan application suggesting that Ms Huybers could service a loan exceeding $2,000,000 was dishonest. Moreover, her Honour found “that part of the accused’s collateral deception was misleading Ms Huybers as to what exactly was occurring during this period of time”: at [462].

6. [80]

   Her Honour found that the applicant’s description of the joint loan investment arrangement to Ms Huybers, and his assurances to her in his email dated 15 January 2012. that he “will guarantee all investors monies as I always do”, constituted dishonest conduct that was designed falsely to reassure her that he had her interests in mind, whilst he devised a loan structure that entailed the abuse of her financial naivety and the trust she placed in him: at [463]. The trial judge was satisfied that the applicant acted dishonestly according to the standards of ordinary people and further that he knew that his conduct was dishonest according to the standards of ordinary people: at [464].

7. [81]

   In relation to intention, the trial judge’s reasoning was as follows:

8. [82]

   On the element of causation, the trial judge was satisfied that the false information about the income and loan paying capacity of the applicant, together with the stated purpose of the loan, were the only reasons which could be suggested as the operative inducement on ANZ to approve the loan and issue the two bank cheques in the amount of $1,074,663.80 and $792,827.70 to Wyse & Young Accounting: at [468]. Her Honour was satisfied that the deception induced the ANZ loan assessors to approve the loans that caused a financial disadvantage to ANZ in the amount averred in the indictment ($1,867,491.50): at [469]. Her Honour was thus satisfied that the Crown had proved the causal connection between the deception and the financial disadvantage: at [468]-[470].

9. [83]

   Her Honour concluded:

Ground 1: The trial judge erred in law in failing to direct herself that she needed to be satisfied beyond reasonable doubt that the applicant intended to cause ANZ a financial disadvantage, or was reckless as to that possibility

1. [84]

   Section 192E of the Crimes Act is contained in Part 4AA, which is titled “Fraud”. The section provides as follows:

2. [85]

   A number of other sections in Part 4AA address the meaning of particular terms in s 192E. Relevantly for present purposes, the word “deception” is defined in s 192B as follows:

3. [86]

   Section 192D addresses the meaning of obtaining a financial advantage and causing a financial disadvantage, providing:

4. [87]

   The term “dishonesty” is defined in s 4B, for the purposes of the Act:

5. [88]

   I have set out in [75] above the trial judge’s direction regarding the elements of the offence in s 192E(1)(b): the accused; by deception; dishonestly caused a financial disadvantage. Her Honour set out those elements in two draft documents that she provided to counsel for the Crown and the applicant during the trial, respectively titled “Elements Document Version 1” and “Elements Document Version 2” (MFI 110 and 111: see Tcpt 19/07/23 p 1315). The difference of substance between the two documents was that Version 1 included references to recklessness in the discussion of the element of “deception” (consistently with the terms of s 192B(2)), whereas Version 2 did not. The likely explanation for the omission of recklessness from Version 2 is that the Crown case against the applicant relied on intentional deception, as her Honour noted at [14] of the judgment on verdict.

6. [89]

   On 24 July 2023, the trial judge invited the parties to comment on the elements document by Thursday, 27 July 2023 (Tcpt 24/07/23 p 1468). In defence closing written submissions dated 27 July 2023 (MFI 116), no specific comment was made on the elements document. However, the closing written submissions reflected the elements as her Honour had identified them. Under the heading “Directions”, the only direction that counsel addressed was the need for a Liberato direction.

7. [90]

   On appeal, the applicant advanced a novel construction of s 192E(1)(b). He submitted that the provision is an offence of specific intent, relying on Brennan J’s obiter explanation of that concept in He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-570; [1985] HCA 43. The applicant identified the elements of the offence in his written submissions, as they applied in the present case, as follows:

8. [91]

   The applicant submitted that, consistently with ordinary principles of criminal liability, the consequence (his element 3) must be one that the accused person intended (his element 4). It was thus necessary for the Crown to prove beyond reasonable doubt that the applicant, by his deception, intended to cause the alleged financial disadvantage to ANZ (given the Crown had put the case on the basis that the deception was intentional and not reckless). The trial judge did not direct herself in those terms, and did not consider or make findings on the question of whether the applicant had that intention. It followed, the applicant submitted, that her Honour had erred in law.

9. [92]

   The applicant accepted that leave was required to raise this ground pursuant to r 4.15 of the Criminal Appeal Rules, as his trial counsel did not object to the trial judge’s directions on the elements of the offence. However, he submitted that directing the tribunal of fact as to the elements of an offence is so fundamental a task that leave under r 4.15 should be granted even when objection is not taken at trial. He relied in this respect on Cook (a pseudonym) v R [2022] NSWCCA 282 at [56] (“Cook”), a case in which the Crown conceded that the trial judge did not adequately direct the jury on an agreed element. In oral submissions, counsel for the applicant submitted that if the construction of s 192E(1) for which he contended on the appeal were accepted, the applicant had been tried for an offence which was not known to the law.

10. [93]

    The present case is in an altogether different category to Cook. The trial judge proceeded on the basis of elements of the offence which were not the subject of any dispute, and did not include the element that he advanced on appeal. Further, and in any event, the construction for which he contended is without merit.

11. [94]

    Although no case has considered the precise construction of s 192E(1) for which the applicant contended, it is of some significance that no court has construed the offence as including the applicant’s fourth element. In cases that have involved the offence in s 192E(1) (or its statutory predecessor), this Court has explained that the offence expressly requires that it be committed both “by deception” and “dishonestly”, with the respective definitions of those terms assigning a different mental element: see eg Bazouni v R [2021] NSWCCA 256 at [75]-[76].

12. [95]

    The definition of “deception”, in s 192B of the Crimes Act, does not require the deception to induce a false belief in the recipient of information. Rather, “[t]he relevant effect is prescribed by the third element of the offence”, namely obtaining any financial advantage or causing any financial disadvantage: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 (“Duncan v ICAC”) at [647] (Basten JA). The phrase “by deception”, in s 192E(1), requires a causal connection between the deception used and the relevant effect. In Flack v R [2011] NSWCCA 167 (“Flack”), which concerned the statutory predecessor to s 192E (s 178BA of the Crimes Act) Johnson J (McLellan CJ at CL and Hidden J agreeing) stated:

13. [96]

    Referring to this paragraph of Flack in Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW); Re Robert Burton (a pseudonym) [2021] NSWCCA 87, Simpson AJA considered that the decisions to which Johnson J referred applied equally to s 192E: at [63]. Her Honour also stated that it was not necessary for the Crown to establish that the deception was the sole cause of the outcome, although it must establish that the deception substantially or significantly contributed to that outcome: at [64].

14. [97]

    The requirement of a causal connection between the deception used and (dishonestly) obtaining a financial advantage or causing a financial disadvantage tells against the applicant’s implication of a further mental element accompanying the latter, particularly having regard to the terms of ss 192F and 192G. Bathurst CJ referred to the difference between s 192E and ss 192F and 192G in Duncan v ICAC at [350] (in a passage referred to with approval in Hughes v R [2021] NSWCCA 238 at [29] (Payne JA)), stating:

15. [98]

    Recognising the difficulty that ss 192F and 192G presented for his argument, the applicant submitted that if the mental element for which he contended was not required to make out the offence in s 192E, the requisite mental state for that provision would be less than what was required for an offence under s 192F or s 192G, which he submitted would be a surprising outcome. However, that submission did not grapple with the requirement, unique to s 192E, for a causal connection between the deception (with its own mental element) and what Basten JA described in Duncan v ICAC as the relevant effect.

16. [99]

    In so far as the applicant called in aid the terms of the Bench Book direction to support his construction of s 192E, he emphasised the following part of the direction at [5-5935]:

17. [100]

    In response to this submission, the Crown properly called attention to this Court’s caution against the use of the Bench Book as an aid to construction: see eg Rassi v R [2023] NSWCCA 119 at [107]-[108] (Hamill J, Beech-Jones CJ at CL and Button J agreeing). In any event, the apparent focus of the part of the direction on which the applicant relied is the required mental element for deception, whilst also recognising the need for the causal connection to which I have referred. It does not meaningfully support the construction for which he contended.

18. [101]

    The applicant’s reliance on the legislative history of s 192E also did not advance his submission. The applicant relied on the enactment of s 192E as part of a substantial rewrite of the fraud and forgery offence provisions in the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW), which drew upon the Model Criminal Code and the Criminal Code Act 1995 (Cth) (among other sources). The Explanatory Note to the Crimes Amendment (Fraud, Identity and Forgery Offences) Bill 2009 (NSW) contained a table of “Proposed provisions and corresponding provisions in Model Code, Commonwealth Criminal Code and NSW Crimes Act”. For s 192E, the table identified the corresponding provisions as: (1) ss 17.2 and 17.3 of the Model Code; and (2) ss 134.1, 134.2 and 135.1 of the Criminal Code. The applicant submitted that the closest analogue to s 192E (where financial disadvantage is relied upon) was ss 135.1(3) and (5) of the Criminal Code, which provided:

19. [102]

    The applicant submitted that for either offence, there must be some fault element attached to the loss: intention (s 135.1(3)) or knowledge (s 135.1(5)), and submitted that the knowledge element in s 135.1(5)(b) was framed in such a way as to amount, in effect, to intention. However, it does not follow that s 192E(1) contains a similar requirement, particularly given the obvious textual differences between the two provisions. The most significant of those differences is that s 192E contains the requirement for deception and s 135.1(3) and (5) do not.

20. [103]

    It follows that I would refuse leave to raise ground 1.

Ground 2: The trial judge erred in failing to have proper regard to directions as to the significance of the applicant’s good character

1. [104]

   Towards the end of the trial, at the conclusion of his oral address, the applicant’s counsel noted that it was agreed that the applicant “has no relevant convictions for anything of this nature, very minor convictions [for] matters unrelated to financial matters” (Tcpt 24/07/2023 p 1465). On subsequent questioning from the trial judge, the applicant’s counsel and the Crown agreed that the character direction was “limited” in the sense that the applicant had a conviction for what his counsel described as a small matter, for which he received “a section 10”. Her Honour invited the parties to send through a limited direction if either wished to by 27 July 2023 (Tcpt 24/07/2023 p 1471). The Crown did not provide a direction. The subsequent written submissions on behalf of the applicant did not include any proposed direction and did not otherwise refer to the applicant’s good character.

2. [105]

   The trial judge noted in her judgment on verdict that it was agreed that the applicant was a person of good character and accepted that fact, noting that it was limited by a criminal antecedent entry for which he was given a non-conviction: at [46]. Her Honour then gave herself the following further directions:

3. [106]

   The conviction judgment does not otherwise reference the applicant’s good character. The applicant relied on this absence and submitted that the trial judge erred in failing to give good character additional consideration.

4. [107]

   In support of this submission, the applicant relied on s 133(2) of the Criminal Procedure Act 1986 (NSW), which requires a judgment by a judge presiding over a trial without a jury to “include the principles of law applied by the Judge and the findings of fact on which the Judge relied”. The applicant submitted that the requirements of s 133(2) were not satisfied by the terms of the trial judge’s good character direction alone. He submitted that the Crown case was largely circumstantial and involved drawing adverse inferences against him which were improbable when regard was had to the fact that the applicant was in his early 40s with no relevant prior convictions. The applicant submitted that her Honour needed to explain why she considered that he was guilty beyond reasonable doubt notwithstanding his good character.

5. [108]

   In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (“Fleming”) at [28], the High Court explained (in relation to a provision that was relevantly identical to s 133(2) of the Criminal Procedure Act) that the absence of the expression “reasons for judgment” in that provision did not mean that it would be satisfied “merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made”. What must be exposed is “the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached”.

6. [109]

   In Wade v R [2018] NSWCCA 85 at [123], R A Hulme J observed, by reference to AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [84], that “the question of whether there has been a departure from the statutory imperative will depend, at least in part, upon the nature of the evidence and the issues in the case at hand”. In DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [33] (“DL”), Kiefel CJ, Keane and Edelman JJ explained:

7. [110]

   The decision of this Court in Constantinidis v R; Lazar v R [2022] NSWCCA 4 (“Lazar”), on which the applicant placed some emphasis as supporting this ground of appeal, illustrates the point made in DL and the other cases to which I have referred. The appellants in that case were convicted of offering to pay a person, known in the trial as Witness B, to improperly influence a police officer in respect of an investigation with intent to pervert the course of justice, contrary to s 319 of the Crimes Act. The police investigation that formed the basis of the charge related to a gold bar that police seized during a vehicle search: at [5]. One of the occupants of the car said that the gold bar was not his but had been given to him by Mr Lazar to sell: at [9]. Detective Senior Constable Roberts of the Leichhardt Detectives Office commenced to investigate whether the gold bar was stolen or the proceeds of crime: at [7].

8. [111]

   Witness B gave evidence in the trial that he met once with Mr Constantinidis and twice with Mr Lazar, and each had asked him to take steps to deter or prevent DSC Roberts from pursing his investigation. Witness B said that he accepted two payments from Mr Lazar on that account, although he did not do anything to deflect DSC Roberts from performing his duty: at [11]. The only evidence in relation to the arrangement or offer to pay Witness B came from Witness B: at [15]. It followed, as the Court stated at [15], that the trial judge:

9. [112]

   At the time of the acts constituting the alleged offending, Mr Lazar was 41 years old and in the business of mortgage lending: at [8]. Mr Constantinidis was 57 years old and a close associate of Mr Lazar: at [10]. There was evidence that the two men had business dealings together, including in relation to mortgage lending: at [10]. Neither of the men had any prior convictions. The trial judge dealt with the appellants’ character in one paragraph, stating (as extracted in [156] of the Court’s reasons):

10. [113]

    In upholding the appellants’ ground of appeal that the trial judge had failed properly to take good character into account, the Court stated:

11. [114]

    As the Crown submitted, the applicant’s good character did not assume the importance in this trial that it did in Lazar, or in the other case on which the applicant relied in oral submissions, Barwick v R [2023] NSWCCA 139. The appellant in the latter case, who was convicted of three sexual offences involving children, called numerous witnesses as to his good character, “both generally and in relation to there being no grounds for concern as to his behaviour with children”: at [12]. The appellant gave evidence in the trial accepting that he was at the locations identified in the indictment but denied ever sexually assaulting the complainant or engaging in any of the conduct alleged: at [12], [71]. The grounds of appeal included that the trial judge erred in dealing with the appellant’s evidence, including failing to comply with s 133(2) of the Criminal Procedure Act in rejecting his evidence. In upholding that ground of appeal, Wright J (Chen and Yehia JJ agreeing) stated that in circumstances where there was “impressive and powerful” character evidence, and the appellant had given evidence which the trial judge assessed as forthright in demeanour and reliable as to various types of detail, it was “incumbent” on the trial judge to expose how credibility had been taken into account in relation to: (a) whether the appellant’s evidence should be accepted; and (b) whether his version of what occurred could reasonably, or might, be true: at [78].

12. [115]

    In the present case, the applicant’s trial counsel raised good character at the conclusion of his oral submissions, with some further limited discussion that I have outlined in [104] above. The specific submissions that the applicant advanced on the appeal regarding the impact of his good character, particularly in relation to the drawing of inferences, were not made. Nonetheless, the role of good character was well understood by the trial judge, who directed herself consistently with what the applicant submitted on appeal about the role of good character, reflecting the majority’s analysis in Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32.

13. [116]

    The applicant submitted that the trial judge failed to explain why she considered that his good character did not raise a reasonable doubt as to whether he committed the offence charged. However, as the trial judge recognised in giving herself the directions I have set out above, good character was one of many factors for her Honour to take into account in determining whether she was satisfied of the applicant’s guilt beyond reasonable doubt. Her Honour found that the applicant’s guilt was the only reasonable inference or conclusion that could be drawn from a consideration of “all the established facts viewed as a whole”, and that no other reasonable conclusion arising from those established facts was inconsistent with that established conclusion: at [471].

14. [117]

    The Crown submitted that “all of the established facts” necessarily included the applicant’s good character, which the trial judge had accepted. The applicant submitted that this could not be sufficient to discharge the requirement in s 133(2) and that “some kind of engagement” with the issue of good character was necessary. I disagree, having regard to the limited extent to which good character was ventilated at trial, the structure of her Honour’s reasons, and her Honour’s conclusions. In view of her Honour’s findings, there was little to be said about the applicant’s good character, such that the absence of further reference to it does not ground an error of the nature alleged. I would dismiss ground 2.

Ground 3: The trial judge erred in failing to have proper regard to directions as to the reliability of the evidence of Mr Winiata and Ms Dawson

1. [118]

   The applicant sought directions under s 165 of the Evidence Act 1995 (NSW) regarding the reliability of the evidence of Mr Winiata and Ms Dawson. Her Honour gave herself those directions, stating:

2. [119]

   The applicant submitted that the reasons of the trial judge did not demonstrate any consideration of the matters about which her Honour directed herself. The most critical aspect of the evidence of these individuals, he submitted, related to the applicant being the source of the false financial documents. (I have addressed the evidence going to that issue in some detail above.) In respect of that issue, the applicant submitted that in [438] of the reasons, the trial judge did not countenance the possibility that Mr Winiata was falsifying his evidence so as to shift the blame to the applicant, and that this constituted a failure to consider the s 165 direction.

3. [120]

   In order to evaluate that submission, it is necessary to set out [438] of the trial judge’s reasons together with the paragraphs that followed:

4. [121]

   It is apparent from this passage, read as a whole, that acceptance of the appellant’s submission would entail reading the first part of [438] in isolation from the balance of the paragraph and the following paragraphs. As the Crown submitted, her Honour was not required to identify any of the reasons why she overcame the s 165 caution for the short reason that her Honour did not do so. Her Honour relied instead on the significant body of documentary evidence as giving rise to the inference that the applicant provided the false information that was submitted with the Pineview loan application. I would dismiss ground 3.

Grounds 4 and 5: The verdict was unreasonable and (in the alternative) a miscarriage occurred by reason of the variance between indictment, the case the Crown ran and the trial judge’s directions

1. [122]

   In Baker v R [2023] NSWCCA 262, which involved an appeal from a conviction following a trial by judge alone, Beech-Jones CJ at CL succinctly summarised the principles that apply on an unreasonable verdict ground as follows:

2. [123]

   His Honour also set out the following paragraphs from Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 regarding the significance of the reasons produced by a trial judge sitting without a jury to a ground of this nature:

3. [124]

   Relevantly to the passage that I have emphasised, the applicant’s particulars in support of the unreasonable verdict ground did not involve any challenge to the findings of the trial judge that the various documents on which the Crown relied, which were submitted to ANZ in support of the Pineview loan, contained false information.

4. [125]

   The applicant advanced four particulars in support of his ground that the verdict was unreasonable. In his oral submissions, counsel for the applicant addressed the first particular of ground 4 together with ground 5, and I will do the same.

5. [126]

   The focus of this particular, and of ground 5, was the terms of the indictment. The applicant emphasised that the relevant act of deception was pleaded as him “submitting” the application for the Pineview loan which contained falsities. He submitted that, notwithstanding that the Crown did not apply to amend the indictment, it opened the case against the applicant on a different basis, alleging that he had caused the loan application to be submitted. It followed, in his submission, that the Crown ran its case in a manner that was impermissibly inconsistent with the indictment. The applicant further submitted that having regard to the terms of the indictment, the applicant had been convicted for submitting a loan application when the evidence at trial did not establish that he had done so. In the alternative, the applicant relied upon the matters set out in support of this particular to contend that the Crown ran a case contrary to the indictment and he was not given a trial in accordance with law (ground 5 of the notice of appeal).

6. [127]

   The applicant’s argument was premised on a narrow reading of the word “submitting”, seeking to confine it to the physical transmission of the loan application. However, from the commencement of the trial it was clear that the Crown did not intend for it to be read so narrowly, and that its case was not that the applicant physically submitted the loan application. Rather, as the Crown Prosecutor outlined at the outset of the trial, the Crown alleged that he “knowingly caused false information to be submitted to [ANZ] via a loan broker on 10 January 2012 and 1 February 2012” (Tcpt 30/05/23 p 2). The first paragraph of the written Crown Opening (no oral opening was given) was in identical terms.

7. [128]

   The applicant’s trial counsel well understood that this was the Crown case, as demonstrated by his closing written submissions (MFI 116), which stated:

8. [129]

   The trial judge summarised the Crown case in a manner that reflected that common understanding, stating at [5]:

9. [130]

   Consistently with the case as run by the Crown and well understood by the defence, the trial judge posed the question for determination as being whether she could be satisfied beyond reasonable doubt “that it was in fact the accused who was responsible for causing the false information to be submitted to ANZ and further if he did so, did he do so knowingly”: at [356]. Although the applicant seized upon the trial judge’s conclusion, at [458], that he “submitted the ANZ loan application”, as indicating a perverse outcome, I accept the Crown’s submission that, read in context, her Honour’s conclusion could only refer to the applicant causing (or being responsible for causing) the submission of a loan application to ANZ which was false and deceptive.

10. [131]

    I thus reject the first particular of ground 4. It follows that I also reject ground 5, which relied on the same alleged discrepancies between the indictment and the Crown case at trial.

11. [132]

    The applicant submitted that the Crown failed to prove two “indispensable intermediate facts” beyond reasonable doubt: (1) that the applicant provided the false information to Mr Winiata and Ms Dawson; and (2) the applicant did so knowingly and with the intention that the false information would thereby be conveyed to ANZ. The Crown took issue with the description of these facts as “indispensable intermediate facts”, submitting that they were no more than a restatement of an element of the offence, being the deception particularised by the Crown. That criticism was not without force, although the correctness of the descriptor does not affect the applicant’s submissions as a matter of substance, which were directed to the sufficiency of the evidence on the element of deception.

12. [133]

    The applicant submitted that the only direct evidence that supported his having provided the documents containing the false information to Mr Winiata and Ms Dawson was the evidence of Mr Winiata, that the applicant had sent them to him by email to his ANZ email address. However, no such emails were produced and no explanation was given for a failure to do so. Police did not execute a search warrant with respect to Mr Winiata’s premises and no explanation for the failure to do that was given. The Crown also called a witness employed by ANZ, Brett Peacock, to give evidence as to the submission and receipt of the relevant documents and the bank’s practices with respect to such loans, but no evidence was called from him to the effect that: (a) there had been a search of Mr Winiata’s email account that did not reveal such emails; or (b) such emails were no longer available.

13. [134]

    The applicant also relied on the absence of an original of the Pineview loan application and the associated documents, submitting that there was a real possibility that Ms Huybers had removed documents from the applicant’s business premises, and it was possible that she had taken the original. This submission was at odds with the applicant’s reliance on the loan application being submitted to ANZ by Ms Dawson or Mr Winiata; on that case, the original of the loan application was unlikely to be at the applicant’s premises.

14. [135]

    The applicant otherwise submitted that, on the evidence, the only matters that linked the applicant to the Pineview loan application and the impugned documents were: (1) his signing the letter about the purpose of the loan that formed part of the second tranche of documents sent to ANZ (see [69] above); and (2) Mr Winiata’s evidence. Adopting the submissions of the applicant’s trial counsel, the applicant submitted that, in light of Mr Winiata’s admission that he had forged Ms Huybers’ signatures on the loan application, anything he said about the loan application, including the supporting documentation, could not be accepted. Without his evidence, the Crown was left to rely on some emails suggesting that the applicant was favourably disposed to the loan and had thought up the loan structure, and circumstantial evidence that his firm was in a position to produce the documents on which the Crown relied. The applicant submitted that this did not rise to the level of proving that the applicant provided the false documents to Mr Winiata and/or Ms Dawson.

15. [136]

    As to the evidence regarding the applicant’s knowledge that the information would be submitted to ANZ, the applicant submitted that, even accepting Mr Winiata’s evidence that the applicant sent him the financial information relating to Ms Huybers, that information was provided a number of months before the Pineview loan application was submitted and was for the purpose of a different loan, namely, the loan with ANZ for $1,050,000. The applicant submitted that the evidence thus left open a reasonable doubt that he provided the financial information relating to Ms Huybers and Green Global intending it to be submitted to ANZ for the purposes of procuring the Pineview loans. If there was a reasonable doubt that he provided the financial documents, it would not be open to be satisfied that his provision of what he described as the “non-financial documents” (the cover sheets for the two contracts of sale and the letter he signed about the purpose of the loan) was causative of the financial disadvantage. The applicant submitted in this respect that the Crown did not call evidence from ANZ as to the actual deception or particular matters taken into account; and while it could be readily accepted that false financial documents might induce a bank into making a loan it would not otherwise make, it was not clear that the non-financial documents would.

16. [137]

    Addressing this last submission first, the applicant appears to have overlooked the ANZ loan assessment documentation that was in evidence (see [71] above), which indicated that in recommending that the loan be approved the bank relied not only on the supporting financial information but also on the letter that the applicant signed as to the purpose of the loan. Additionally, the sale of the Pine Valley and Calderwood Properties, as recorded in the coversheets to the contracts of sale that were submitted, provided the basis for the loan application. I will return to this material below in the context of the fourth particular.

17. [138]

    The balance of the applicant’s submissions on this second particular sought to disaggregate the evidence in a manner that did not reflect the documentary record. The documents that were in evidence, which I have addressed in some detail above, highlighted the nature and extent of the applicant’s interactions both with Ms Huybers and with Mr Winiata. Specifically in relation to the Pineview loan application, the documents demonstrated the applicant’s involvement in applying for the loan and his knowledge of the material required to be submitted in respect of it. Critically, in his first email on 31 December 2011 to Mr Winiata (see [28] above), the applicant:

    1. (1)

       suggested they “probably use Susan [Ms Huybers] in a Trust Set up”;

    2. (2)

       noted that Mr Winiata had “done loans for Danny and Susan”, so the applicant could make “Susan of Green Global” one of the trustee companies; and

    3. (3)

       noted that, as the properties were investment properties, “both should be approved swiftly”.

18. [139]

    In his response, Mr Winiata confirmed that he had “everything for Susan” but he needed notices of assessment for Mr Kalischer for 2010 and 2011 (see [30] above). As the Crown submitted, Mr Winiata’s request for notices of assessment for Mr Kalischer from the applicant reflected his evidence that the bank would need this type of information in considering a loan application and that he had received this information for Ms Huybers in relation to the earlier loan. This was consistent with the applicant’s subsequent email to Mr Winiata of 6 January 2012 in which he suggested that they could expedite settlement of the ANZ loan over the Arcadia Property using Ms Huybers, given she “was already approved and ANZ hold her details already in Resi and Business” (see [34] above). Additionally, Mr Winiata’s request for the applicant to send him this information reflected his evidence that he would (and did) receive this type of financial information from the applicant.

19. [140]

    The content of the financial documents relating to Ms Huybers and Green Global (apart from the notice of assessment from the ATO) was consistent with having originated in the applicant’s office. The tax returns for Ms Huybers and Green Global were created using accounting software that was available in that office, while the financial statements had the Wyse & Young letterhead. The Crown called a number of witnesses who worked at Wyse & Young at the relevant time to exclude the possibility that someone other than the applicant created the documents.

20. [141]

    Even without Mr Winiata’s oral evidence, then, the inference that the Crown sought to draw, that it was the applicant who provided the financial documents regarding Ms Huybers and Green Global to Mr Winiata, was readily available. The further inference, that the applicant knew that such information would also be necessary for the Pineview loan, was also readily available. As the Crown submitted, it was clear from the documents, not least Mr Winiata’s further email to the applicant on 31 December 2011 in which he stated that he needed to know exactly what the applicant wanted to do (see [31] above), that Mr Winiata acted on the instructions of the applicant. It was highly unlikely that Mr Winiata submitted documentation in support of the loan application without the applicant’s knowledge or approval.

21. [142]

    Additionally, the emails I have already referred to, and other emails, showed that the applicant was driving that loan application. On 31 December 2011, in addition to sending the above emails to Mr Winiata the applicant introduced Ms Huybers to Frank Rubino and showed her the various properties (see [32] above). As the Crown submitted, the applicant was aware of Ms Huybers’ financial position (including the $600,000 line of credit) and that Green Global did not trade. The applicant also sent Ms Huybers the two emails dated 15 January 2012 to which I have referred above, the first telling her what she needed to do in relation to particular documents that ANZ required, and a second, lengthier email that same evening about the transaction (see [63] and [64]). When Mr Jetson sent Ms Huybers the trust deed the next day, he referred her to “[the applicant’s] overnight instructions”; while Ms Huybers prepared the declaration regarding Green Global giving a corporate guarantee using wording that the applicant gave her over the phone (see [66] above).

22. [143]

    As the Crown submitted, the applicant had a financial motivation for having the Pineview loan approved. I have set out key aspects of the evidence in that regard in [22] above. In his 31 December emails with Mr Winiata, the applicant referred to being repaid as part of the proposed loan structure.

23. [144]

    The evidence thus comfortably grounded the inference that the applicant provided the false financial documents to Mr Winiata and knew that the false financial documents were used in support of the application for the Pineview loans. The evidence also comfortably supported the conclusion that the applicant provided the sale contract coversheets and the letter as to loan purpose, which the applicant described as the “non-financial documents”. It was the applicant who proposed backdating the sale contracts, in one of his emails to Mr Winiata, so as to map with the date of Ms Huybers’ statutory declaration of 29 November 2011 (see [34] above). The letter as to loan purpose was given under his signature. I am satisfied the evidence satisfied this element of the charge to the requisite standard. I reject particular 2.

24. [145]

    The applicant submitted that he did not cause ANZ a financial disadvantage because each of the Pineview loans attracted a commercial rate of interest and was secured by a top-ranking security over a property that was worth several hundred thousand dollars more than the value of the loan. There was a commercial rate of interest and repayments were to be made monthly. The applicant submitted that the trial judge erred in relying upon the payment of funds by ANZ as constituting a financial disadvantage without considering the commercial context and any benefits that ANZ was to receive.

25. [146]

    As I have noted above, the phrase in s 192E(1)(b), “cause a financial disadvantage” is defined in s 192D. As the trial judge noted at [467], the definition makes it very clear that a financial disadvantage may be temporary. On any view, ANZ’s advance of approximately $1.87 million pursuant to the Pineview loans, including for a stated purpose that was false and on the basis of information as to loan serviceability that was false, constituted a financial disadvantage. The fact that the loan was secured and ANZ could, in the event of default, take possession of the two properties, exercise a power of sale and recoup the loan funds, might have meant that its disadvantage was temporary. But a temporary financial disadvantage is sufficient. I reject particular 3.

26. [147]

    The central point advanced on this particular was that the wrongful acts of Mr Winiata, in forging Ms Huybers’ signature, and Ms Dawson, in signing the interview checklist, operated to break the chain of causation in relation to the applicant. The applicant submitted that there was a reasonably strong inference available that, had Ms Dawson not falsely indicated that she interviewed Ms Huybers, or had Mr Winiata not forged Ms Huyber’s signature on the application, ANZ would not have approved the loan.

27. [148]

    I have addressed the content of the requirement for a causal connection in the context of ground 1 above (see [95]-[96]). It was necessary for the Crown to establish that the deception relied on substantially or significantly contributed to the outcome of ANZ advancing the loan funds. The conduct of the applicant in the provision of the false documentation was properly so characterised.

28. [149]

    As was the case with the applicant’s submissions on the second particular, his submissions on this particular overlooked the ANZ credit assessment, from which a causal connection between the false information and the approval of the loan was readily apparent. Given the importance of the purpose of the loan in terms of assessing its serviceability, the letter falsely stating that the purpose of the loan was a long-term investment was also, apart from the financial documents, a significant or substantial cause of the financial disadvantage suffered by ANZ. I reject particular 4.

29. [150]

    Having considered the particulars that the applicant advanced in support of this ground individually and collectively, and made my own independent assessment of the evidence, I have concluded that the evidence led in the trial was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of the offence. I would grant leave to raise ground 4 but I would dismiss the ground.

30. [151]

    Ground 5 was rejected in addressing particular 1 of ground 4. The grant of leave should be extended to ground 5.

Conclusion on the conviction appeal

1. [152]

   I would refuse leave under r 4.15 of the Criminal Appeal Rules to raise ground 1. I would grant leave to raise grounds 2-5 but would dismiss the appeal against conviction.

The sentence appeal

1. [153]

   Given the detail in which I have addressed the trial judge’s reasons on the conviction appeal and the nature of the applicant’s proposed grounds of appeal on sentence, I can address the sentence appeal more briefly. For the reasons that follow, although I would grant leave to the applicant to appeal against his sentence, I would dismiss the appeal.

2. [154]

   The sentence hearing occurred on 8 December 2023. The Crown tendered documents which included the applicant’s criminal and custodial history and a Sentence Assessment Report dated 27 November 2023. The applicant tendered a bundle of documents which included a report prepared by Dr Dornan, psychologist, dated 30 November 2023, and a number of affidavits and references in support of the applicant’s character. After the hearing, the parties provided further written submissions in January 2024. On 8 February 2024, the applicant sought to reopen his case to adduce further evidence on the issue of whether the offending had caused Ms Huybers to lose her Queensland house.

3. [155]

   In sentencing the applicant, her Honour first summarised the facts from the judgment on verdict before moving to consider the objective seriousness of the offence having regard to a number of well-recognised factors. Her Honour considered that the amount of money involved in the offending, being the sum of $1,867,491.50, was not in the worst-case category but was nonetheless substantial. The offending was not an impulsive decision but a calculated and persistent demonstration of deceptive conduct over several months, which her Honour later described as involving a level of sophistication in which the applicant cloaked what he was actually doing. Her Honour considered that the applicant was motivated by personal enrichment, acting with a misplaced sense of financial entitlement and callous disregard of those with true financial entitlement.

4. [156]

   Her Honour also referred to the “collateral” deception of Ms Huybers, who was misled over a number of months with respect to the details of what actually occurred. Her Honour found that the applicant knew Ms Huybers was of limited financial means and that she trusted him as a financial adviser; and that the applicant had no regard for the inevitable financial exposure and loss she would suffer by reason of being so financially exposed. Having regard to all of these matters, her Honour concluded that the offence was “serious and a reasonably complex act of criminality” falling within the mid-range for offences of this kind.

5. [157]

   The Crown initially relied on the aggravating factors in ss 21A(2)(g) and 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), in relation to the applicant’s conduct towards Ms Huybers. Ultimately, however, the Crown resiled from those submissions and her Honour did not rely on either provision as aggravating the applicant’s offending. Her Honour also eschewed reliance on s 21A(2)(o).

6. [158]

   When considering mitigating factors, the sentencing judge found the applicant was entitled to leniency as a first-time offender: s 21A(3)(e). On balance, however, her Honour gave limited weight to the applicant being a person of prior good character, noting that prior good character generally assumes less significance in circumstances of white-collar offences. Pursuant to ss 21A(3)(g) and 21A(3)(h) respectively, the sentencing judge found that the applicant had a low risk of reoffending and reasonable prospects of rehabilitation. In reaching this conclusion, her Honour had regard to the report of Dr Dornan, who considered the applicant’s risk of reoffending was low, and that the applicant had not committed any similar offences since 2012.

7. [159]

   The character references provided in support of the applicant also went to his good prospects of rehabilitation, while the Sentence Assessment Report noted that the applicant was willing to undertake interventions and address his mental health. However, her Honour also noted that the applicant was reported to have made statements to the author of the Sentence Assessment Report and to Dr Dornan which indicated that he failed to appreciate that defrauding a large bank was a serious crime, demonstrating a lack of insight into the offending.

8. [160]

   In relation to applicant’s subjective circumstances, her Honour noted that the applicant’s family remained supportive; he was the director of his own business; he had an unstable childhood; and his parents died in his adolescence. Dr Dornan’s opinion was that the applicant met the diagnostic criteria for persistent depressive disorder and general anxiety disorder, but her Honour did not find a causal connection between the offending and his mental health such as to reduce his moral culpability. Her Honour also considered the delay in finalising the matter but considered that the applicant’s conduct had necessitated a complex and lengthy investigation. Her Honour did not consider the delay to be so inordinate that it would be a mitigating factor.

9. [161]

   In assessing the applicant’s hardship in custody, the primary judge was not satisfied that there was sufficient evidence to support the proposition that his experience in prison would be different from that of the typical prisoner to such an extent that his sentence should be reduced. Her Honour found special circumstances on the basis that the applicant had sound prospects of rehabilitation and would benefit from an extended period of supervision.

10. [162]

    The sentencing judge noted that “meaningful and substantial sentences of imprisonment” must be imposed for serious examples of fraud offences: McKittrick v R [2014] NSWCCA 128 at [121], noting the difficulty in detecting and successfully prosecuting white collar crime: McMahon v R [2011] NSWCCA 147. Her Honour outlined the significant repercussions frauds upon banks have on the community. Her Honour also stated that personal deterrence was important here given the seriousness of the criminal conduct involved. Noting the applicant’s attitude to the offending and his failure to appreciate its seriousness, her Honour was dissuaded from finding that his rehabilitation mitigated the need for personal deterrence.

Ground 7: In the alternative, the trial judge took into account an irrelevant consideration or acted on a wrong principle, in taking into account (in substance) a breach of trust in relation to Ms Huybers as aggravating the offending

1. [163]

   The applicant submitted that the sentencing judge took into account uncharged deception, or alternatively, took into account (in substance) a breach of trust in relation to Ms Huybers. Although the applicant accepted that the extent of the deception that her Honour found was relevant to sentence, he submitted that the focus should be on the deception actually practised on the victim (here, ANZ) which was found to be causative of the financial disadvantage. The applicant submitted that instead, her Honour erroneously focused on the position of Ms Huybers, and relied on his deception of her as increasing the objective seriousness of the offending.

2. [164]

   The applicant relied in this respect on the sentencing judge’s summary of her findings in the judgment on verdict regarding the extent of the deception, which included:

3. [165]

   The applicant also relied on the following findings that her Honour made on sentence:

   1. (1)

      The offending involved a “calculated, persistent demonstration of deceptive conduct carried out over several months”.

   2. (2)

      The applicant “acted with a misplaced sense of financial entitlement and a corresponding callous disregard to those with true financial entitlement”, which the applicant submitted related to Ms Huybers and not ANZ.

   3. (3)

      The “offending involved a devious scheme and that a good part of the reason the offender was able to effect it was because he fooled others into thinking he had greater knowledge of financial matters and so to trust him”, and that “[i]t involved the collateral deception of Susan Huybers”.

   4. (4)

      Ms Huybers was “so financially naïve and illiterate that she did not understand how the offender had arranged her financial affairs, nor indeed that it was the offender who was acting against her interests in relation to this loan”; and “the offender continued to deceive and mislead Ms Huybers including in the early stage of the investigation as to who was at fault in this matter”.

4. [166]

   I do not accept the applicant’s submissions on these grounds. As the Crown submitted, in assessing the objective seriousness of the offence her Honour was required to consider the nature of the applicant’s dishonesty and the nature, extent and sophistication of the deception perpetrated on ANZ over the time period averred in the indictment (30 November 2011 to 10 March 2012). Considering those matters inexorably required consideration of the applicant’s related deception of Ms Huybers as to the nature, purpose (and existence) of the loan, the reasons why she was required to become the director of Pineview, and the reasons given for her signing various documents. Her Honour’s findings reflected the interconnectedness of the applicant’s interactions with Ms Huybers and with ANZ. At the same time, her Honour expressly disavowed relying on the deception of Ms Huybers as aggravating the offending. There was no error in her Honour’s approach in the manner alleged in grounds 6 and 7.

Ground 8: The trial judge acted on a wrong principle in concluding that the need for specific deterrence was not mitigated by (a) the unlikelihood of the offender reoffending; (b) the offender’s prior good character; and (c) the fact that the offender had not offended since the offence charged

1. [167]

   I have set out above the findings that the sentencing judge made on the matters about which the applicant complained pursuant to this ground. The applicant took particular issue with the following part of her Honour’s reasons:

2. [168]

   The applicant accepted that his lack of insight (given he maintained his innocence) might ground some need for specific deterrence. However, he submitted that the sentencing judge’s statement that established rehabilitation did not “mitigate” the need for personal deterrence demonstrated “a misapprehension as to what specific deterrence is and the factors which are relevant to it”. He submitted in this respect that a finding that a person is unlikely to reoffend diminishes the importance of specific deterrence: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [129] (“Totaan”).

3. [169]

   The decision in Totaan does not support a proposition of the breadth of the applicant’s submission. In that case, the appellant pleaded guilty to two Commonwealth fraud offences. After error was established and the Court proceeded to resentence, Bell CJ stated that the need for specific deterrence was low as there was a low risk of reoffending, stemming from the fact that an abusive relationship, which contributed to the offence, had ended. It did not follow that in the present case her Honour fell into error by not similarly finding, and it certainly did not follow from what her Honour said that her Honour misunderstood specific deterrence, or its role within the sentencing discretion. I would reject ground 9.

Conclusion

1. [170]

   I propose the following orders:

   1. (1)

      Leave to rely on ground 1 in support of the conviction appeal is refused.

   2. (2)

      Grant leave to appeal on grounds 2-5 in support of the conviction appeal.

   3. (3)

      Dismiss the conviction appeal.

   4. (4)

      Grant leave to appeal against sentence.

   5. (5)

      Dismiss the sentence appeal.

2. [171]

   BASTEN AJA: I agree with Mitchelmore JA that both the appeal against conviction and the appeal against sentence should be dismissed.

3. [172]

   These further observations relate to ground 1 on the conviction appeal, which sought to rely upon a construction of s 192E of the Crimes Act 1900 (NSW) which had not been presented during the trial. As counsel for the applicant accepted, that ground requires leave pursuant to the Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15.

4. [173]

   Given the comparative transparency of a judge-alone trial over a jury trial, there may be circumstances in which leave is more readily granted than in the case of a jury trial. For example, where the new material is a proposed additional direction on a question of law, it may be easier to tell from the judge’s reasons whether such a direction would have been material and whether the omission may have resulted in a miscarriage of justice. It may also be necessary to ask whether the fresh issue is one which could have been addressed by further evidence.

5. [174]

   For the following reasons, the trial did not proceed upon a false understanding as to the law, and accordingly I agree with Mitchelmore JA that leave to raise the point should be refused. Perhaps unusually in refusing leave, it is necessary to explain why the issue lacks merit. That requires identification of the elements of the offence.

6. [175]

   The terms of s 192E, s 192B (the meaning of deception), s 192D (causing a financial disadvantage) and s 4B (the meaning of dishonesty) have been set out at [84]-[87] above.

7. [176]

   The indictment contained three elements, namely (a) by deception (i) submitting (or causing to be submitted) a loan application to the ANZ bank, (ii) knowing that the application contained false information, (b) thereby causing a financial disadvantage to the ANZ bank.

8. [177]

   The logic of this formulation, which follows from the language of s 192E(1), involves conduct (which may be described as “the deception”), which has a consequence, namely causing financial disadvantage. There is no doubt that both limbs of (a) involve a mental element. Thus, merely preparing a loan application containing false information, without deliberately submitting it to the ANZ Bank, would not satisfy the element of the offence. If the accused did not submit the application, but someone in the office found it on his desk and, without authority, sent it to the bank, the conduct would not satisfy the first limb of the offence, unless the accused had been reckless. Similarly, the second element contains a requirement of knowledge, or at least recklessness. The offence is not committed unless the accused knew or believed that the information contained in the application was false in a material respect, or was reckless as to that element. The formulation in the indictment acknowledged the second element by referring to the accused “knowing” that the loan application contained false information. This was identified by counsel for the applicant as an element of “specific intent”. [1]

9. [178]

   Two further points may be made in relation to the pleading. First, the term “knowing” does not appear in s 192E(1). However, the pleader was not wrong to use that language. Both “deception”, and “dishonestly” require knowing falsity or withholding of the truth. (It may be noted that the reference to “deception” in s 192B is not a true definition: although it says what the word “means”, it commences with the term itself, says how it may occur, identifies the subject-matter as “fact or law”, and states that it includes certain matters. [2] )

10. [179]

    The second point to be noted in relation to the pleading is that it did not allege that the conduct was dishonest according to the standards of ordinary people, nor did it plead that it was “known by the defendant” to be dishonest according to those standards. That was not necessary: it was sufficient to plead that the accused “dishonestly caused” a disadvantage. That language picked up the definition in s 4B of “dishonest” in accordance with the terms of that provision.

11. [180]

    As explained by Mitchelmore JA at [91] above, the error relied on by the applicant was an alleged failure of the trial judge to identify that the causing of a financial disadvantage was intentional or reckless.

12. [181]

    There are a number of reasons why this ground fails. However, first and dispositively, the financial disadvantage to the ANZ Bank was the making of the loan in response to the materially false loan application. The making of the loan (and thus the incurring of the financial disadvantage) was the sole uncontested purpose of the deceptive conduct, namely the submission of the loan application. On the assumption that the first element, namely submitting a false loan application, or causing it to be submitted, was proved, the intention as to the consequence was not in issue.

13. [182]

    Secondly, the supposed requirement for a mental element identified by Brennan J in He Kaw Teh v The Queen [3] is redolent of the submission that was presented (and rejected) in Salameh v R. [4] Nothing that was said in He Kaw Teh demands a requirement of a particular state of knowledge in an accused as to every element of an offence. The significance of that point is muted in a case where the consequence in fact achieved was clearly intended. In circumstances where that is not the case, the correct analysis would be to focus on whether the necessary causal connection was established between the deceptive conduct and the consequence.

14. [183]

    WRIGHT J: I agree with the orders proposed by Mitchelmore JA for the reasons that her Honour has given and in light of my independent assessment of the evidence and the findings of fact made by the trial judge about which no issue was taken in the appeal.