Citation: R v Sappideen [2018] NSWDC 238
Court: District Court of New South Wales
Date: 2 February 2018
Judge: M L Williams SC DCJ
Background
The offender, a 37-year-old man, pleaded guilty to 11 principal counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900, with additional offences taken into account on a Form 1. He defrauded 20 victims of approximately $4.6 million, of which around $3.6 million remained unaccounted for at the time of sentencing.
The offender cultivated relationships with his victims, presenting himself as a sophisticated and credentialed financial expert with connections to prominent institutions such as Platinum Asset Management and Goldman Sachs, and claiming degrees from the University of Sydney, New York University, and the University of New South Wales. All of these representations were false. He persuaded victims to invest money by promising extraordinary guaranteed returns on fictitious investment opportunities, then employed elaborate delaying tactics, forged communications, and fabricated tax requirements to string victims along. He never intended to invest the funds, and the investments did not exist.
This was not the offender's first course of similar conduct. In 2005, he had been sentenced to eight years imprisonment for a series of earlier fraudulent offences. Having been released on parole in November 2009, he began committing the current offences within approximately the last few months of his parole period. Some offences were committed while on parole, others after a subsequent arrest and grant of bail, and further offences were committed in breach of bail conditions. Both his parole and bail expressly prohibited him from engaging in any activity involving control of other people's money or assets.
Legal Issues
- What aggregate sentence and non-parole period was appropriate for 11 principal counts of obtaining a financial advantage by deception, involving 20 victims and approximately $4.6 million in losses?
- How should the Form 1 matters be taken into account in setting the overall sentence?
- How should the three distinct periods of offending (while on parole, while on bail, and the period between the two) be treated in terms of concurrency and accumulation?
- Was a finding of special circumstances warranted to adjust the ratio between the head sentence and the non-parole period?
Decision
Williams SC DCJ accepted that a lengthy term of imprisonment was unavoidable, a concession also made by defence counsel. The court applied the sentencing purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999, including personal and general deterrence, given the systematic and sustained nature of the deception, the exploitation of personal trust, the scale of the financial harm, and the offender's prior history of substantially similar conduct.
The Form 1 offences were addressed in accordance with the Chief Justice's guideline judgment, which makes clear that the additional penalty for Form 1 matters should not be small and may be more substantial depending on the circumstances. The court attributed indicative increases to the principal counts with which the Form 1 matters were associated, most notably in the count involving Richard Gan, which carried the largest indicative sentence of seven years and incorporated eight Form 1 matters.
On the question of accumulation, the court rejected a purely concurrent approach within each of the three groups of offending. Because each group involved separate victims, the sentences could not simply be treated as concurrent. The court applied the principles of totality drawn from Cahyadi v The Queen and R v XX, as well as Pearce v The Queen, to arrive at an aggregate sentence that reflected the overall criminality without producing a crushing result disproportionate to the totality of the offending.
The court found special circumstances, justifying a longer non-parole period ratio than would otherwise apply under the standard formula. The offending while on conditional liberty, the prior criminal history, and the need for an appropriate period of supervised release upon parole were all relevant to this finding.
Orders Made
- The offender was convicted of each offence.
- An aggregate sentence of 12 years imprisonment was imposed, commencing 28 November 2014 and expiring 27 November 2026.
- A non-parole period of 8 years was imposed, expiring 27 November 2022.
- Indicative sentences were set for each of the 11 principal counts, ranging from 3 years to 7 years, with Form 1 matters taken into account as specified.
- Special circumstances were found.
Key Takeaways
- The District Court imposed an aggregate sentence of 12 years with an 8-year non-parole period for a sustained campaign of investment fraud involving 20 victims and approximately $4.6 million in losses, reflecting the seriousness of the offending and the offender's prior history of near-identical conduct.
- Where an offender commits separate offences against separate victims across distinct periods of conditional liberty, sentences should not automatically be treated as concurrent within each group; the existence of individual victims is a factor weighing against a purely concurrent approach.
- Under the Chief Justice's guideline on Form 1 matters, courts are required to treat these additional offences as genuinely increasing the sentence, and the uplift may be substantial when the volume or seriousness of the Form 1 matters warrants it.
- A prior sentencing court's observations about an offender's manipulative presentation and persistent pattern of fraud are relevant context when the offender reoffends in the same manner after serving that earlier sentence.
- Special circumstances can be found to adjust the standard non-parole period ratio where the nature of the offending, the offender's history, and the need for supervised reintegration collectively justify a longer custodial component before parole eligibility.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- Cahyadi v The Queen (2007) 168 A Crim R 41
- R v XX (2009) 195 A Crim R 38
- Johnson v The Queen (2004) ALJR 616
- Cowling v R [2015] NSWCCA 213
- R v Qutami (2001) 127 A Crim R 369
- Pearce v The Queen (1998) 194 CLR 61