Citation: Karl Suleman v R [2009] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 20 March 2009
Judge(s): McClellan CJ at CL, Howie J, Hislop J
Background
The appellant was the principal and controller of a company, Karl Suleman Enterprises Pty Limited, which operated a supermarket trolley collection business. Between April 2000 and July 2001, he induced members of the public to invest approximately $3.185 million in the company through false statements and, in some cases, forged documents purporting to show contracts with major supermarkets. The company ultimately failed, and investors other than two whose agreements were fulfilled lost a total of around $828,915.
The appellant pleaded guilty in the District Court to 26 counts: 15 charges of making a false statement under s 178BB of the Crimes Act 1900 (maximum 5 years each) and 11 charges of using a false instrument under s 300(2) of the Crimes Act 1900 (maximum 10 years each). Nield DCJ sentenced him to a total term of 7 years and 4 months, with a non-parole period of 5 years and 6 months.
The appellant, unrepresented, sought leave to appeal against sentence on multiple grounds, including the adequacy of the guilty plea discount, the use of a "position of trust" as an aggravating factor, and the application of the totality principle to the cumulative sentences imposed.
Legal Issues
- Whether the sentencing judge erred in allowing only a 15% discount for the guilty pleas and cooperation with investigators
- Whether the judge erred in treating a breach of trust with the "Assyrian community" as an aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act
- Whether the judge adequately applied the totality principle when structuring the cumulative sentences across 26 counts
- Whether the judge gave sufficient weight to the circumstances of individual counts, including counts where the victim suffered no financial loss
Decision
The Court found that the 15% discount for the guilty pleas was within the range open to the sentencing judge, particularly given that the pleas came at a relatively late stage. The appellant's cooperation with investigators and the liquidator did not compel a higher discount, and no error was established on this ground.
On the aggravation ground, the Court accepted that the sentencing judge had erred by framing the aggravating factor as a breach of trust with the "Assyrian community" specifically. The statutory aggravating factor under s 21A(2)(k) addresses a breach of trust arising from the offender's position, not a breach of community-based trust in a wider social sense. However, the Court held that the conduct did involve a genuine breach of trust in the relevant legal sense, as investors had reposed confidence in the appellant based on representations he made, and this finding could be sustained on proper grounds.
The Court identified a more significant error in the application of the totality principle. The structure of the cumulative sentences resulted in a combined term that was disproportionate when all relevant factors, including the nature of the offences, the overall criminality, and the appellant's subjective circumstances, were taken into account. The Court also found insufficient account had been taken of the fact that some counts involved a single transaction or victims who had suffered no actual financial loss.
On those bases, the Court allowed the appeal and resentenced the appellant to a total term of 6 years and 4 months, with a total non-parole period of 4 years and 9 months. Sentences for counts 16 to 26 were confirmed; sentences for counts 1 to 15 were quashed and restructured.
Orders Made
- Leave to appeal granted and appeal allowed
- Sentences for counts 1 to 15 quashed; the appellant resentenced on each of those counts to terms of 18 months imprisonment, structured as a cascade of cumulative sentences commencing 1 May 2006
- Count 15 structured with a non-parole period of 4 months and 14 days commencing 17 September 2010, with a balance of term of 1 year and 7 months from 1 February 2011
- Sentences for counts 16 to 26 confirmed
- Overall result: total term of 6 years and 4 months, with a total minimum period of custody of 4 years and 9 months (reduced from 7 years 4 months and 5 years 6 months respectively)
Key Takeaways
- The Court of Criminal Appeal confirmed that a 15% guilty plea discount is not, of itself, an error, particularly where pleas are entered at a late stage; cooperation with investigators does not automatically lift the discount above that level.
- Under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act, the "position of trust" aggravating factor must be grounded in the legal relationship between offender and victim, not in a broader community or ethnic solidarity context.
- A breach of trust can still properly aggravate investment fraud where victims reposed specific confidence in the offender's representations, even if the sentencing court's original articulation of that factor was legally imprecise.
- Where multiple counts are imposed cumulatively, the totality principle requires the sentencing court to step back and assess whether the overall sentence reflects the total criminality without becoming disproportionate; failure to do so constitutes a sentencing error.
- Counts involving a single underlying transaction or victims who suffered no actual financial loss warrant separate consideration when structuring cumulative sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 178BB, 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)
Cases:
- R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v MAK [2005] NSWCCA 369
- R v Martin [2005] NSWCCA 190
- R v Wickham [2004] NSWCCA 194
- R v Johnson [2005] NSWCCA 186
- R v Fordham (1997) 98 A Crim R 359