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District Court 28 March 2008

R v Tunde Doja

[2008] NSWDC 69

Fraud & dishonesty
CRIMINAL LAW SENTENCING PARTICULAR OFFENCES

Citation: R v Tunde Doja [2008] NSWDC 69
Court: NSW District Court
Date: 28 March 2008
Judge(s): Goldring DCJ

Background

The offender worked as a financial and investment adviser and promoted margin lending facilities offered by Macquarie Bank to his clients. These facilities allowed investors to borrow money to acquire financial products, with the expectation that returns from those products would service the loan repayments. The offender's clients were largely unsophisticated, many being skilled tradespeople drawn by the prospect of financial gain for little personal outlay.

The offences arose from the manner in which the offender completed loan application forms on behalf of his clients. In each case he fabricated, in whole or in part, the financial information recorded in those forms, including assets, liabilities, income, and expenditure. Clients either did not see the completed forms or had signed forms with blank spaces left for the offender to complete. The false information caused the bank to lend to clients who would not otherwise have qualified, and the offender or his company received commissions on both the loans arranged and the financial products purchased.

Following a trial in late 2007, the jury convicted the offender on eight counts of obtaining a financial advantage by deception. A number of related Commonwealth Corporations Act charges resulted in a hung jury. The sentencing hearing was conducted on 28 March 2008.

  • What sentences were appropriate for eight counts of obtaining a financial advantage by deception, taking into account the nature and seriousness of the offending?
  • How should the principles of totality and accumulation apply where multiple offences involved separate victims over a period of time?
  • Whether special circumstances existed to justify a variation in the standard ratio between non-parole period and total sentence term.

Decision

Goldring DCJ characterised the offences as very serious, despite involving no physical violence. The offender had exploited the trust of vulnerable, financially unsophisticated clients, exposing them to significant financial obligations they had little capacity to meet. His Honour noted that the offender had, even by the time of sentencing, told the Probation and Parole Service he did not believe he had done anything wrong, which the court treated as a relevant consideration.

The court drew a distinction between the harm caused to Macquarie Bank and the harm caused to the individual clients. His Honour found that while the bank suffered losses, it was better placed to absorb them than the individual victims, who appeared to have suffered proportionally greater financial harm. The offences directly harming individual clients were accordingly treated as more serious than those causing harm to corporate institutions.

On the question of accumulation, Goldring DCJ ordered the sentences for counts 7 to 12 to run consecutively in a cascading structure, commencing at three-monthly intervals. The sentences for counts 13 and 14 were ordered to be concurrent with each other but partly cumulative on the earlier counts. The court found special circumstances, referencing the psychiatric report of Dr Carne and the fact that the offender had no prior criminal history and had not previously been in custody, justifying the extended ratio between the non-parole period and the total sentence. The totality principle was also applied to moderate the overall effect of the accumulated sentences.

Orders Made

  • Counts 7 to 12: imprisonment with a non-parole period of 2 years and total term of 4 years on each count, structured as cascading consecutive sentences commencing from 1 February 2008, with the final count 12 total term expiring 30 April 2013.
  • Counts 13 and 14: imprisonment with a non-parole period of 18 months and total term of 3 years on each count, concurrent with each other, non-parole periods commencing 1 May 2010 and expiring 31 October 2011, total terms expiring 30 April 2013.
  • First eligible date for release on parole: 31 October 2011.

Key Takeaways

  • The District Court treated the deliberate fabrication of clients' financial details on loan application forms as seriously aggravated deception, particularly because the offender was experienced in the finance industry and exploited the trust of financially unsophisticated victims.
  • Where an offender holds a position of trust or expertise in relation to vulnerable clients, a sentencing court may treat direct harm to individuals more seriously than equivalent losses suffered by corporate financial institutions better positioned to absorb them.
  • Special circumstances justifying a departure from the standard non-parole to total term ratio can be established by a combination of factors, including no prior criminal history, no prior custody, and expert psychiatric evidence.
  • Cascading consecutive sentences, each commencing at staggered intervals, represent one available structure for giving effect to accumulation across multiple discrete offences involving different victims, while the totality principle operates to moderate the overall sentence.
  • Goldring DCJ offered observations, though not central to the holding, that poorly drafted Commonwealth legislation can create genuine difficulty in directing juries, and that the complexity of such provisions may contribute to hung jury outcomes.

Legislation and Cases Referenced

Legislation:
- Corporations Act 2001 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited: None cited in the provided text.