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District Court 12 December 2019

R v Albert

[2019] NSWDC 869

Fraud & dishonesty
CRIME SENTENCE DISHONESTLY OBTAIN FINANCIAL ADVANTAGE FRAUD SHAM BUSINESSES

Citation: R v Albert [2019] NSWDC 869
Court: District Court of New South Wales
Date: 12 December 2019
Judge: Bourke SC DCJ

Background

The offender, Daniel Albert, appeared for sentencing on 32 counts of dishonestly obtaining a financial advantage, contrary to s 192E(1)(b) of the Crimes Act 1900. He had entered guilty pleas at Central Local Court on 11 October 2018, attracting a 25% discount on sentence. The offences spanned approximately four and a half years, from September 2011 to April 2016.

The offending was carried out through four separate businesses: Glamour Nail, Identical You, Switched on Social, and First Aerial. Each business operated with the outward appearance of legitimacy, engaging lawyers, leasing office space, and employing staff, while making materially false representations to attract investment. Across all four ventures, 32 victims were defrauded of a total of approximately $4,324,570.

The Glamour Nail enterprise was the largest component of the fraud. It promoted a purportedly fully automated nail art vending machine, described as the only one of its kind in the world, with falsely claimed trademarks and international patents. The automated machine never existed. The offender purchased older, non-automated machines from a Korean company and presented them to prospective investors as prototypes, while photographs of empty demonstration shells were sent to waiting customers as evidence of active manufacturing.

  • What aggregate sentence was appropriate for 32 counts of dishonestly obtaining a financial advantage, having regard to the totality principle?
  • What weight should be given to mitigating factors including guilty pleas, remorse, and personal circumstances such as gambling, drug, and alcohol issues?
  • Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period.

Decision

His Honour imposed an aggregate sentence rather than individual consecutive sentences, consistent with the requirements of the Crimes (Sentencing Procedure) Act 1999. Indicative sentences for each individual count were stated throughout the remarks, ranging from two years to over two years imprisonment depending on the amount involved and the circumstances of each victim. The aggregate sentence was arrived at by applying the totality principle, which required a significant degree of concurrency to avoid a crushing result, while also building in some accumulation to reflect the full scope of the criminality.

The court accepted that the guilty pleas warranted a 25% discount and acknowledged some evidence of remorse through the offender's letter and his report to a psychologist. However, the weight given to remorse was reduced because it rested entirely on self-report and was not supported by sworn evidence. His Honour was unable to conclude that the offender's prospects of rehabilitation were good, given the premeditated and prolonged nature of the offending and his prior conduct.

Deterrence, both general and specific, was identified as a primary sentencing consideration. The court held that no sentence other than full-time imprisonment was appropriate, and no submission was made to the contrary. Special circumstances were found to exist, justifying a slight extension of the parole period relative to the head sentence, in order to allow for supervised reintegration into the community given the offender's gambling, drug, and alcohol issues.

Orders Made

  • The offender was convicted of all 32 offences.
  • An aggregate sentence of 10 years imprisonment was imposed, with a non-parole period of 6 years and 9 months.
  • Both the head sentence and the non-parole period were backdated to 30 October 2017, the date on which the offender was taken into custody in New Zealand.
  • The head sentence expires on 29 October 2027.
  • The non-parole period expires on 29 July 2024, at which point the offender becomes eligible for consideration for release on parole.

Key Takeaways

  • The District Court confirmed that premeditated, sustained fraud involving multiple sham businesses and numerous victims across an extended period calls for significant punishment, with deterrence given primary weight.
  • A 25% sentence discount applied where guilty pleas were entered at the Local Court, consistent with the discount regime under the Crimes (Sentencing Procedure) Act 1999.
  • Remorse expressed only through self-report, without supporting evidence on oath, received reduced weight in the sentencing calculus.
  • Under the totality principle, an aggregate sentence for multiple counts required both concurrency and some accumulation, balancing the need to reflect overall criminality against the risk of a crushing sentence.
  • Special circumstances justifying a variation of the standard head sentence to non-parole period ratio may be found where an offender's particular rehabilitation needs, including substance and gambling issues, make an extended period of supervised parole appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Trade Practices Act 1974 (Cth)

Cases
- Veen v R (No 2) (1988) 164 CLR 465