Fineff v R

1. [1]

   LEEMING JA: Mr Gavin Daniel Fineff seeks leave to appeal from an aggregate sentence of imprisonment for 9 years, with a non-parole period of 5 years and 4 months, imposed by the District Court following his guilty pleas to 12 counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). Each offence carries a maximum penalty of 10 years imprisonment. There were 12 individual victims who had trusted him with their savings and investments, from whom he took amounts of between $60,000 and $745,000 over a period from October 2016 until March 2020. The total amount of the frauds is $3,355,026.20. Four of the victims were aged between 35-45, two were aged 59 or 60, but six were aged in their 70s or 80s (more precisely, 70, 71, 77, 84, 85 and 85). The fact that many of the victims were elderly was prominent in the reasons of the sentencing judge and both parties’ submissions, as were some of the victim impact statements. Also prominent in the reasons of the sentencing judge and the applicant’s submissions was the fact that the applicant presented an exceptionally favourable subjective case.

2. [2]

   Following a sentencing hearing that occupied parts of two days, the sentencing judge imposed sentence on 21 April 2023 giving a substantial judgment of 279 paragraphs: R v Fineff [2023] NSWDC 108. Mr Woods, who appeared for the applicant in this Court but not in the District Court, made it clear that he was not critical of any aspect of those reasons. There was no challenge to any of the findings, whether adverse or favourable, made by the sentencing judge, whose reasons in a complex exercise of the sentencing discretion are clear, careful and nuanced.

3. [3]

   The applicant had reported to police after his employer was alerted to the fraud, and in consequence obtained the benefit of discounts of 25% for his early pleas and an additional 5% for his assistance to authorities. Consistently with authority, the indicative sentences specified in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) incorporated that 30% discount: see Elsaj v R [2017] NSWCCA 124 at [56], Berryman v R [2017] NSWCCA 297 at [29]-[31] and AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133 at [97] (where this Court was constituted by five judges). I shall return below to the submissions made in relation to the impact of the substantial discount on sentence.

4. [4]

   The sentencing judge imposed an aggregate sentence, and at [275] identified the indicative sentences for each of the 12 counts as follows:

5. [5]

   The single ground of appeal for which the applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), is that his sentence is manifestly excessive.

Background

1. [6]

   The following draws on the reasons of the sentencing judge. In 2010, the applicant commenced working with Sentinel Management Pty Ltd, a financial planning and investment business, becoming a financial planner in around 2013. The owner and managing director of Sentinel was Mr Justin Hooper. By 2019 the applicant was earning $160,000 per annum, plus bonuses of around $15,000, and managed around 120 clients. He had also acquired a minority financial stake in his employer, doing so with vendor finance.

2. [7]

   Financial planners at Sentinel were only authorised to provide advice in relation to a limited number of investments. These did not include individual share purchases. Between October 2016 and March 2020, the applicant obtained personal loans from the 12 victims ostensibly for the purpose of acquiring shares in Sentinel or two unlisted public companies, Surf Lakes Holdings Ltd and QBiotics Group Ltd. Those dealings were outside the scope of his role at Sentinel. His clients lent him money because he was their financial advisor and they trusted him to act in their best interests. Eleven of the 12 victims were told, falsely, that he needed the funds to purchase shares in Sentinel. Some of the clients were told that they should lend him money so that he could purchase shares in QBiotics, and in one case, Surf Lakes Holdings. The applicant offered interest rates of between 3% and 7% per annum, save that in the last 6 months of the offending the loans had higher interest rates, of up to 30% per annum. The clients lent him money, but he did not use it to purchase shares. He gambled it away.

3. [8]

   Paragraphs 18-205 of the District Court decision describe in considerable detail the offending, including consideration of the events giving rise to each of the 12 charges. By way of example, and because the offending relating to Ms Beevor was most prominent in the parties’ submissions in this Court, it is convenient to reproduce [95]-[105] of the sentencing judge’s reasons, which deal with sequence 7:

4. [9]

   Paragraphs 206-215 of the sentencing judge’s reasons describe how, in February 2020, Sentinel became aware of the applicant’s offending (by reason of an email from some of the applicant’s clients (who were not victims)), following which, on 14 March 2020, Mr Hooper received an email attaching a five page handwritten letter in which the applicant admitted to having a gambling addiction, being in debt, and that he had borrowed money from family, friends and clients which he had lost. The applicant’s employment was terminated on 20 March 2020. Sentinel then commissioned a forensic accountant who, on 10 July 2020, reported that the applicant’s relationships with the clients came about through his role as a financial planner at Sentinel where he was responsible for providing financial advice to them, that his personal relationships with clients were “maintained quite separately from his professional relationship[s]”, and that the applicant had advised that he had a gambling addiction and had lost all the funds borrowed from the clients.

5. [10]

   On 7 May 2021, the applicant attended Chatswood Police Station and was arrested. He participated in an electronically recorded interview, which was approximately 5.5 hours in length, and provided police with a 42 page written statement. The sentencing judge summarised the police interview as follows:

6. [11]

   Police had made enquiries into the applicant’s gambling, which revealed that:

   1. (1)

      between June 2018 and March 2020, he had deposited $2,208,525 with Ladbrokes and withdrew $1,450,015, resulting in a loss of $758,510;

   2. (2)

      between June 2014 and October 2018, he had deposited $6,013,744 with Sportsbet or Beteasy, and withdrawn $2,353,900.92, resulting in a loss of $3,659,843.08, and

   3. (3)

      Police were unable to obtain records from Tabcorp where he had also been a client for some 9 years until June 2018. He was also a customer of Betfair from March 2010 to May 2020.

7. [12]

   The sentencing judge observed that the objective seriousness of fraud offences turned upon the amount of money involved, whether actual loss was occasioned, the length of time over which the offending occurred, the motive, the degree of planning and sophistication, and whether there was any accompanying breach of trust: at [227]. His Honour stressed the importance of general deterrence, because of the difficulty in detecting offending of this type, and that the sentence “must send a clear warning to others who may be tempted to act as the offender did, that if they are detected, and come before the courts, then they can expect to serve meaningful custodial sentences”: at [229]. His Honour noted that the applicant’s offending involved a grave breach of trust, which could only be committed because of the close personal relationship which existed between him and his victims. The period of time over which the offending occurred varied between one year and seven months in the cases of Joyce Williams and Joan Richards, and eight days in the case of Julia Van der Veer, but his Honour stated that “[i]t was not isolated or impulsive” but rather “the offending was well-planned, deliberate and sophisticated, involving repeated communications with the victim’s both at the time their funds were advanced, and later as the offender sought to reassure them in respect of those investments”: at [231]. His Honour noted that the applicant had “repeatedly engaged in the preparation of false and/or misleading documents to give apparent legitimacy to his criminal behaviour”, and then noted at [232]:

8. [13]

   Another matter which was regarded as important to the assessment of objective seriousness was the age and characteristics of many of the applicant’s victims. The sentencing judge said at [233]:

9. [14]

   His Honour was satisfied that the motive for the crimes was the applicant’s addiction to gambling, but noted that generally speaking a gambling addiction was not regarded as a mitigating circumstance because it was merely the motive or explanation for the commission of the crime. To anticipate aspects of the applicant’s subjective case, evidence of his personality disorder and complex post-traumatic stress disorder slightly moderated the applicant’s moral culpability and made him a marginally less appropriate vehicle for general deterrence, but the sentencing judge regarded the applicant’s gambling disorder as being in a different category, which did not ameliorate his moral culpability or the need for general deterrence: at [246].

10. [15]

    The sentencing judge summarised the offending for each charge at [238] as follows:

11. [16]

    In a section headed “The impact on the victims”, the sentencing judge gave the following nuanced summary at [240]-[241] of the victims’ statements received at the sentencing hearing:

12. [17]

    The Court was taken to the statements summarised by the sentencing judge. Ms Williams was aged around 85 and later died, but her daughter described how her mother’s standard of living was greatly reduced, and instead of a comfortable retirement, she had to leave her comfortable garden two bedroom apartment for a small one bedroom apartment which was dark and cold. She stopped cooking for herself as the oven was too low for her. She did not get to know her neighbours, and feared for her safety. Her daughter said that her mother had been brought up in a children’s home, and had fought to make a presentable life, and yet “She ended where she started. Trusting no-one”, concluding:

13. [18]

    The statement eloquently emphasises that there are far more victims of the applicant’s frauds than the 12 clients whose money he stole. There is also unquestionably serious lingering emotional harm inflicted upon their families, and financial harm too upon those who have become obliged to support the applicant’s former clients, and upon those who otherwise would be expected to benefit from the primary victims’ estates after their death.

14. [19]

    Ms Doreen Beevor’s statement should be reproduced in its entirety. In part that is because of her concern that she feels as though she does not have a voice, and I wish to convey that I have read (and I believe the sentencing judge also read) every word of her statement. Further, it is difficult fairly to summarise all aspects of the statement, not least her under-stated tone and her acute awareness that her words cannot fully convey the impact of the offending.

15. [20]

    As the fourth paragraph of Ms Beevor’s statement makes plain, the materials assembled by the applicant in support of his rehabilitation were double-edged, especially his attempts to portray himself as a victim. Confronting this directly, the applicant’s counsel submitted:

16. [21]

    The sentencing judge said at [242] that:

17. [22]

    The applicant was the oldest of three children from a dysfunctional family, where the father, apparently an accomplished rugby league player, abused alcohol and perpetrated numerous episodes of violence upon his mother. Dr Gutkin’s report refers to the applicant’s witnessing his father strangling his mother, such that the applicant believed she would die, and opined that he suffers from complex post-traumatic stress disorder because of his childhood experiences. The father also introduced his son, when aged around 12 or 13, to gambling on race horses. Professor Stephen Woods also diagnosed the applicant as suffering from a personality disorder with mixed features, but predominantly narcissistic, avoidant and borderline types, as well as a persistent and severe gambling disorder that is now in sustained remission.

18. [23]

    The sentencing judge was of the view that none of the mental conditions was causally connected with the offending, but had regard to both those conditions (but not the gambling disorder) and also the level of disadvantage and dysfunctionality in his home as part of the instinctive synthesis.

19. [24]

    After an attempt at a career in rugby league, injury led the applicant to working in a credit union and obtaining a diploma in financial management. He met his wife in 2004 and there are two children of the marriage. The sentencing judge recorded at [250] that:

20. [25]

    The original deposit for the applicant’s share in Sentinel was borrowed from his mother. The sentencing judge said at [252]:

21. [26]

    The sentencing judge referred to the enormous sums gambled away by the applicant, noting that there did “not appear to have been any attempt by these betting agencies to verify the source of the funds he was wagering with them”. His Honour said at [253]:

22. [27]

    His Honour added at [254]:

23. [28]

    This Court was told that some “preliminary steps” had been taken to consider whether the amounts could be recovered. It is inappropriate for this Court to offer any views on the strength or otherwise of a claim, but it is to be hoped that by now, more than four years after the offending came to light, some thought has been given to whether the gambling companies were aware of the applicant’s occupation and salary, what steps if any were taken by those companies to guard against the possibility that the money provided to them and gambled away was money obtained in breach of fiduciary duty, and of the prospects of claims against them, including based on Barnes v Addy (1874) LR 9 Ch App 244. I mention this principally because, as was raised during the hearing, concrete evidence of the steps taken by the applicant to facilitate the recovery of funds to the 12 victims would be of much greater solace to them, and would unequivocally contribute to a favourable assessment of the applicant’s rehabilitation, compared to the various public statements he has made criticising the conduct of gambling companies and urging reform of the regulatory regime to which they are subject.

24. [29]

    None of the above should be taken to imply that the applicant’s conduct has not produced any tangible benefits to his victims. To the applicant’s credit, the sentencing judge recorded evidence from the applicant’s trustee in bankruptcy as to the assistance he provided in recovering client funds, including that $448,174 had been recovered, with hope that more would be. The sentencing judge noted that the evidence revealed there would be a “significant shortfall” in the recovery of the total amount the applicant defrauded, but also that it was not the case that the applicant had simply walked away from his victims without any effort to reimburse them. His Honour added at [255]:

25. [30]

    The sentencing judge recorded that the applicant had no prior criminal convictions and was a person of otherwise good character, but noted that offending of this type was often committed by such persons, and that the 2nd to 12th offences were committed by a person who was not of good character, albeit that his offending had not at that time been discovered.

26. [31]

    The timing is somewhat unusual. After his offending was revealed, the applicant presented to Wesley Mission, then was admitted to the psychiatric unit at Royal North Shore Hospital, and then to South Pacific Private Hospital where he remained for two months. For reasons that are not plain on the face of the materials provided to this Court, more than a year passed between the detection of his crimes in March 2020 and the applicant presenting himself to police in May 2021 whereupon he was charged, and more than a year thereafter passed prior to his being taken into custody in October 2022. To his credit, in the more than 2½ years between his offending being detected and his being taken into custody, the applicant took positive steps towards rehabilitation. He attended over 200 meetings of Gamblers Anonymous, received psychiatric treatment from Dr Gutkin once or twice a week for more than two years, completed a Life Choices Program at Oakdene House Foundation, attended conferences concerning gambling reform and made media appearances to acknowledge his wrongdoing and tell his story, and embraced Buddhism.

27. [32]

    As noted above, the applicant also contributed to parliamentary debate and the development of legislation concerning gambling reform, making submissions to both the Australian and UK governments. The sentencing judge said at [259]:

28. [33]

    The sentencing judge found that the applicant had excellent prospects of rehabilitation, including based on his conduct.

29. [34]

    The sentencing judge found that in addition to a 25% discount for his plea, the applicant was entitled to an additional 5% for his assistance to authorities, stating at [265] that his assistance was significant and useful in initially cooperating with Mr Hooper and Sentinel including by the preparation of a spreadsheet identifying all the loans he had obtained from Sentinel clients, then assisting the forensic accountant including by the provision of documents including loan agreements, bank statements, spreadsheets, and emails, preparing a 42 page statement setting out the details of his crimes and providing to police that statement and a USB stick containing material which assisted them in their investigation, including a spreadsheet detailing the funds he had dishonestly obtained from each of his victims, including particulars of the dates of loans and various account numbers.

30. [35]

    The sentencing judge considered totality, and a number of comparable cases, many of which featured in the submissions in this Court, and which will be addressed below.

31. [36]

    A sentence of 9 years with a non-parole period of 5 years and 4 months was imposed. A finding of special circumstances was made, based on the applicant’s prospects of rehabilitation and his needs for post-release intervention to complete the gambling rehabilitation and ongoing assistance for his various mental health conditions. The sentencing judge accepted that the applicant was “committed both to abstinence from gambling and ongoing psychological counselling upon his release from custody, and overall, [I] am satisfied he has excellent prospects of rehabilitation”: at [260].

Was the sentence manifestly excessive?

1. [37]

   Two things should be noted at the outset.

2. [38]

   First, none of the indicative sentences was said to disclose error. An acceptance of the indicative sentences presents an obstacle to accepting the applicant’s submission that the actual aggregate sentence is one that is manifestly excessive. The indicative sentences (which incorporated a 30% discount) add to almost 25 years. The aggregate sentence of 9 years thus reflects a very high level of notional concurrency. Yet the applicant’s offending was the opposite of offending (such as a spree over a short period of time) where a high degree of concurrency is warranted. There were twelve separate primary victims, over a period of 3½ years. It is very difficult to see that the very high level of notional concurrency could nonetheless have resulted in an aggregate sentence which is manifestly excessive.

3. [39]

   The second is that the sentence which is alleged to be manifestly excessive is the whole sentence, not just the total term. A sentence of 9 years imprisonment with a non-parole period of 6 years and 9 months is substantially more severe than the sentence of 9 years imprisonment with a non-parole period of 5 years and 4 months imposed upon the applicant. That is so notwithstanding the general principle that the prospect of securing release on parole is not relevant to the task of sentencing; cf The King v Hatahet [2024] HCA 23 at [21]. Accepting the general principle, it is plain that the applicant has an entitlement to apply for parole, if he chooses, 17 months earlier than an offender who is sentenced to the same total term but with a non-parole period of 6 years and 9 months. If the applicant’s behaviour in prison continues as it has been, he will enjoy good prospects of being released on parole shortly after the non-parole period expires. He may or may not be granted parole, but he has an opportunity to apply over a 17 month period which only exists by reason of the finding of special circumstances. Further, the finding of special circumstances, which results in a proportion of 59%, is extremely favourable. Indeed, of the thirteen cases said to be more or less comparable, only one (R v Clarke [2019] NSWDC 2) had a more favourable ratio. And it is tolerably clear from a review of that decision that Mr Clarke, who was sentenced some 16 months after his offending was detected, had drug, alcohol and gambling addictions, bipolar disorder, and was assessed as having a medium to low risk of reoffending, and in short presented a strong case for an extended period of supervised parole. Once again, the very favourable finding of special circumstances presents an obstacle to accepting the applicant’s submission that the sentence imposed is manifestly excessive.

4. [40]

   It is well settled (see for example Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]) that when it is contended that a sentence is manifestly excessive, appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

5. [41]

   Accordingly, where there are cases which are more or less comparable, it is appropriate to have regard to them, to support or refute the contention that the sentencing discretion has miscarried in the case at hand. But ordinarily more must be done than merely to point to some other case, in light of which the sentence in hand seems too high, in order to conclude that the sentencing discretion has miscarried. Both sides made submissions by reference to an annexure of 13 comparable decisions which had been assembled as pages 20-32 of the Crown’s written submissions.

6. [42]

   In his written submissions, the applicant flirted with the proposition that since he was sentenced on the same day for materially identical offending, and each indicative sentence incorporated a discount of 30%, then one could infer a “notional starting point” for the aggregate sentence of some 12 years and 10 months (because 70% of 154 is approximately 108). The applicant said that “[i]t is tempting to analyse the sentence by reference to a ‘notional starting point’” in that fashion, but immediately added that “analysing the sentence in that way would be wrong and contrary to principle”. Nonetheless, some of the submissions resorted, or came close to resorting, to reasoning involving undiscounted starting points which is commonly deployed when considering comparable sentences imposed in a conventional way – when it is orthodox to equate, say, a 20 year sentence after trial with a 15 year sentence following an early guilty plea attracting a discount of 25%.

7. [43]

   As the applicant acknowledged, this is not merely contrary to authority, including what this Court constituted by five judges said in AC v R at [97], it is wrong in principle. In arithmetic, the sum of three products equals the product of the sum: 0.75 x 8 + 0.75 x 6 + 0.75 x 1 = 0.75 x (8 + 6 + 1). But the distributive law does not apply to aggregate sentencing.

8. [44]

   An aggregate sentence intrinsically incorporates an assessment of totality. An aggregate sentence is not the sum of the indicative sentences that would have been imposed for the individual offences. The single aggregate sentence that is the outcome of the judge’s instinctive synthesis following guilty pleas resulting in a 25% discount to all of the offences does not entail that there was a “notional starting point” which is 133% of that sentence. That is not how an aggregate sentence works, at least in this jurisdiction. To the contrary, s 53A of the Crimes (Sentencing and Procedure) Act is premised on the judge already having determined the sentences which would have been imposed for the individual offences, incorporating any discount for the utilitarian value of a plea, and requires the judge to determine what having regard to the principle of totality the effective sentence should be. Thus if an aggregate sentence of 9 years imprisonment is imposed following early guilty pleas to offences of manufacturing, supply and possession of an illicit drug, and the judge specified indicative sentences for the manufacturing, supply and possession offences of 6 years, 4½ years, and 9 months (in each case incorporating a 25% discount), that does not mean that the judge has notionally started at 12 years and applied a 25% discount. Perhaps the best way of seeing this is to note that there can be no “notional starting point” in the case of an aggregate sentence imposed for two or more offences where the offender pleads guilty to some but is convicted after trial for the others, such that the sentence which would have been imposed for each offence attracts a different discount. (As Button and N Adams JJ explain in PG v R [2017] NSWCCA 179; 268 A Crim R 61 at [83]-[86] there are insuperable difficulties in any attempt to “average out” the individual discounts in such a case.) The happenstance that all of the offending attracts the same discount does not convert the aggregate sentence which is imposed into one that involves some “notional starting point”.

9. [45]

   But as N Adams J observed during the hearing of the appeal, none of the foregoing greatly matters. Most offending of this kind, once it is detected, leads to a prompt guilty plea, and it is not difficult to compare, for the purpose of testing a submission that a particular decision supports the conclusion that the applicant’s sentence was manifestly excessive, an aggregate sentence imposed for multiple offences of this kind which incorporates a discount of 25% with the aggregate sentence imposed on the applicant which incorporated a discount of 30%. N Adams J has explained in Davidson v R [2022] NSWCCA 153; 300 A Crim R 214 at [238]-[245] how this can be done as a “rough guide”. The comparison involves a qualitative element, but that does not prevent consideration of the sentences with a view to testing the applicant’s proposition that for some unstated reason the sentence imposed on him is manifestly excessive.

10. [46]

    The applicant contended that what emerged from that body of decisions were two broad classes of offending:

    1. (1)

       In the first category were cases of sustained offending, often by offenders with previous convictions, with little or no remorse, or who otherwise had a deficient subjective case for which sentences in the order of 10 years imprisonment were imposed.

    2. (2)

       In the second category were other cases where the offending was more broadly comparable to the present case, with favourable subjective cases, which resulted in sentences in the order of 6 years.

11. [47]

    The applicant’s submission was that he fell within the second category, and thus the comparable sentences confirmed that the sentence was manifestly excessive.

12. [48]

    The applicant placed reliance upon R v Burke [2002] NSWCCA 353, where an aggregate sentence of 10 years with a non-parole period of 7½ years was imposed for 50 charges of fraudulent misappropriation, over a period of more than 6 years with more than 26 victims involving more than $5,000,000. The sentence incorporated a discount of 20% for the plea. The applicant emphasised that Mr Burke had a prior record involving dishonesty and showed no remorse, and that while the time period, amount of money taken and number of victims exceeded those in the present case, the sentence was comparable, especially when allowing for a 20% rather than a 30% discount.

13. [49]

    In the second category of case, the applicant relied on R v Hopkins [2021] NSWDC 410, which involved 13 victims over a 3 year period with an amount of $2.94 million of which $2.74 million was unrecovered, by an offender who was a financial advisor who transferred client funds into his personal accounts without authority, and created false documents to facilitate the offending, who suffered from a chronic adjustment disorder and had an unwell daughter, and who used the funds for the maintenance of an extravagant lifestyle. Incorporating a 25% discount for the early plea, the sentence was 6 years imprisonment with a 4 year non-parole period.

14. [50]

    The applicant submitted:

15. [51]

    The applicant’s submissions were advanced attractively and effectively, but I do not accept them.

16. [52]

    First, it is trite that a ground of manifest excess is not made out simply by identifying particular cases which, so it is said, are difficult to reconcile with a sentence imposed. Burke is now more than two decades old, and 39 of the 50 charges were under s 178BA of the Crimes Act which imposed a maximum penalty of only 5 years imprisonment (the other 11 charges were under s 300(2), which carried a maximum term of 10 years imprisonment). The fact that the sentence imposed on the applicant is substantially heavier than that imposed in Hopkins does not of itself establish manifest excess. It may only show that Hopkins was an example of a lenient sentence.

17. [53]

    Secondly, the 13 cases relied on by the parties as comparables is a small sample space for offending which varies widely, in the number of offences, the number of victims, the amount taken and the subjective cases of the offenders. I am unpersuaded that it discloses the two broad categories of case on which the applicant relied.

18. [54]

    A much safer course is to identify sentences which were upheld by or imposed by this Court in circumstances which are broadly comparable to the present case. If there were a body of sentences which resembled Hopkins v R that would support the applicant’s submission. But the opposite is true.

19. [55]

    A more closely comparable decision is Nakhl v R (Cth) [2020] NSWCCA 201, which was an effective sentence of 10 years imprisonment with a non-parole period of 6 years, incorporating a 12% discount for guilty plea. There were eight counts of engaging in dishonest conduct in providing financial services contrary to s 1041G of the Corporations Act 2001 (Cth) which carried a maximum sentence of 10 years imprisonment, involving eight victims over a timeframe of around 4 years with an amount of some $6.7 million, of which $5.1 million was lost. Mr Nakhl ran a financial investment company and defrauded his clients of their money. A further four offences of the same kind were taken into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth), and those offences attracted a maximum penalty of 5 years imprisonment. The offender suffered from mild autism spectrum and OCD, together with narcissistic personality traits, and had suffered a background of bullying due to his race and Tourette syndrome.

20. [56]

    The applicant emphasised that although there were fewer victims, more money was taken and there was no evidence of remorse. There was the following exchange:

21. [57]

    I do not accept all aspects of the applicant’s response. The offending was not “at least as serious”. Because of the way in which s 16BA of the Crimes Act 1914 was used, the effective sentence in Nakhl is the result of eight individual sentences, although four further less serious offences were also taken into account, whereas the applicant has been sentenced for 12 offences. Moreover, not only were there more victims defrauded by the applicant than in Nakhl, but by choosing elderly, vulnerable victims the applicant manifested a greater breach of trust, and inflicted substantially more harm, than is ordinarily the case with this type of offence. While Mr Nakhl’s victims also suffered very significantly, they were on the whole younger and wealthier. Moreover, the offending was materially different. Nakhl was a case involving the actual investment funds in risky investments, rather than theft of funds to sustain gambling. That led to the favourable finding that Mr Nakhl had no intention to steal from his victims; see at [163]:

22. [58]

    It is true that Mr Nakhl had the benefit of a discount of 12% for his pleas, while the applicant has the benefit of a 30% discount. I would accept the applicant’s submission that the effective sentence imposed on Mr Nakhl had he enjoyed a 30% discount would be less than that imposed on the applicant. But for the reasons I have given, that does not entail that the applicant’s sentence is manifestly excessive. To the contrary, it is very difficult to conclude in light of the sentence in Nakhl that the sentence imposed on the applicant is one that is manifestly excessive.

23. [59]

    In Abellanoza v R [2021] NSWCCA 4, a sentence of 8 years imprisonment with a non-parole period of 5 years incorporating a 25% discount was imposed for four charges of dishonestly obtaining a benefit by deception, involving an amount of $3.7 million over an 8 year period but a single victim, namely, Silver Sea Cruises, the offender’s employer. Some of the funds were gambled away, others were used to travel and to send to offshore families, and the offender had a disadvantaged background and suffered from anxiety and depressive disorders. This Court dismissed an appeal against sentence, although Button J, with whom Meagher JA agreed, remarked that the sentence was “undoubtedly substantial” (at [145]), and Fullerton J who wrote separately said that it was “at the very top” of the range: at [38]. But even so, although the timeframe of the offending is longer and the amount is slightly larger, it is very difficult to see why there is any latent error in the more severe sentence imposed on the applicant. A very important point of distinction is that Ms Abellanoza defrauded a single very substantial company which did not notice the loss for years, while the applicant stole from 12 separate victims, many of whom were in their 70s or 80s, in some cases taking their entire life savings, and in some cases inflicting extreme financial and emotional distress. It was open to the sentencing judge to regard the applicant’s offending as much more serious than Ms Abellanzoa’s. In short, once again the sentence imposed in Abellanoza disfavours the conclusion that the applicant’s sentence is manifestly excessive.

24. [60]

    Clarke is even further removed from the present case. Once again there was a single corporate victim from a solicitor committing eight instances of obtaining a benefit by deception involving more than $9.7 million, of which $6 million was unrecovered, over a period of some 1 year and 8 months. The victim was a company owned by one of this country’s wealthiest individuals. An aggregate sentence of 6 years with a non-parole period of 3 years was imposed. However, that reflected a combined discount of 40% (25% for a plea and 15% for assistance), in circumstances where the solicitor not only had a gambling addiction but also bipolar disorder (which however was said “not significantly” to reduce his moral culpability). Those facts bear little comparison with the 12 individuals, and mostly elderly, victims of the applicant, who suffered hardship greatly exceeding that inflicted by Mr Clarke.

25. [61]

    I have referred to Burke, Hopkins, Nakhl, Abellanoza and Clarke because they were the decisions which the applicant addressed most fully, correctly recognising that the others were less closely comparable. Most of the other decisions said to be comparable do not disclose the same favourable subjective case to which the applicant is entitled to rely. Those other decisions provide less support for the conclusion that the sentence imposed is one that is manifestly excessive. It is not necessary to summarise them; enough has been said to reject the submission that the sentence imposed was manifestly excessive. However, I would note that one, DPP v Luscombe [2024] VCC 370, has the further disadvantage that it is a first instance decision from another jurisdiction, and as Davies J and I noted during the hearing, that adds to the difficulty in drawing inferences from it. One difference is apparent from [133]: s 6AAA of the Sentencing Act 1991 (Vic) requires the sentencing judge who imposes an aggregate sentence to state what the sentence would have been had the offender not pleaded guilty.

Conclusion and orders

1. [62]

   Having regard to the foregoing, I am unpersuaded that the sentence imposed by the District Court is one that is manifestly excessive, even having regard to the exceptionally favourable subjective case presented by the applicant including his remorse, insight, prospects for rehabilitation, and positive steps he has taken to assist his victims and more generally to prevent similar offending by others. When allowance is made for the applicant’s position of trust, his abuse of that trust particularly in relation to elderly clients, and the timing and scale of the offending, the sentence is well within the range of sentences open to be imposed. It is to be borne in mind that the sentence giving rise to this appeal includes the non-parole period of 5 years and 4 months as well as the head sentence of 9 years imprisonment, and the non-parole period reflects a substantial element of leniency.

2. [63]

   Although there should be a grant of leave to appeal, I propose that the appeal be dismissed.

3. [64]

   DAVIES J: I agree with Leeming JA.

4. [65]

   N ADAMS J: I agree with Leeming JA.