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Court of Criminal Appeal 14 August 2020

Nakhl v R (Cth)

[2020] NSWCCA 201

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL MONEY OBTAINED FROM INDIVIDUALS TOTAL LOSS TO CLIENTS OF $5,121,168.00 LOSSES INCURRED OVER A FOUR YEAR PERIOD SENTENCE OF 10 YEA RS WITH NON

Citation: Nakhl v R (Cth) [2020] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 14 August 2020
Judges: Bathurst CJ; Hoeben CJ at CL; Adamson J

Background

The appellant was a licensed financial adviser who, between January 2009 and March 2013, received approximately $6.74 million from 12 clients to invest on their behalf. Rather than investing those funds as promised, he used the money for personal and business expenses, deposited funds into his own trading accounts, made unauthorised investments, and used client funds to reimburse other clients. He also made repeated false representations to clients about the value and status of their portfolios.

The total loss suffered by his clients was approximately $5.12 million over a four-year period. None of his clients had expertise in financial planning, and several had specifically told the appellant that capital protection was an important consideration for them. One client invested funds including an inheritance from his late mother, which he said he wanted placed in something "very safe."

The appellant was convicted in the Sydney District Court of eight counts of engaging in dishonest conduct in relation to providing financial services, contrary to s 1041G(1) of the Corporations Act 2001 (Cth). A further four offences of the same kind were taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth). He was sentenced to a total of 10 years imprisonment with a non-parole period of 6 years, and a reparation order of $4,631,918.77 was made. He sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of the offending
  • Whether the sentencing judge erred in her approach to accumulation, concurrency, and totality in constructing the overall sentence
  • Whether the total effective sentence of 10 years with a 6-year non-parole period was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed all three grounds. On objective seriousness, the Court found no error in the sentencing judge's assessment. The offending was sustained over four years, involved deliberate and repeated deception of vulnerable clients, and caused losses exceeding $5 million. The Court was not persuaded that any error of principle had been made in characterising the seriousness of the conduct.

On the accumulation and totality ground, the Court again found no error. Accumulation, concurrency, and the application of the totality principle are quintessentially matters for the sentencing judge's discretion. The appellant challenged findings that were firmly within that discretionary domain, and the Court found no basis to interfere.

The manifest excess ground depended substantially on the first two grounds being established. Because the appellant failed to make out errors on those earlier grounds, and raised no additional matters independently supporting a finding of manifest excess, the Court held he had not discharged the onus of demonstrating that the sentence was unreasonable or plainly unjust.

The Court reiterated the established principle that there is no single correct sentence, and that sentencing requires the balancing of many competing factors. A sentence will only be disturbed on appeal where it falls outside the range that a sentencing judge could properly impose without error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's assessment of objective seriousness, accumulation, and totality are discretionary findings that attract considerable appellate deference.
  • A ground of manifest excess cannot stand alone where it depends on earlier grounds of error that have themselves been rejected and no additional independent matters are raised.
  • Under s 1041G(1) of the Corporations Act 2001 (Cth), a maximum penalty of 10 years imprisonment applies to each count of dishonest conduct in relation to financial services; the Court found a total effective sentence at the statutory maximum was not unreasonable on these facts.
  • The non-parole period represents the minimum period of actual custody having regard to rehabilitation, objective seriousness, and the offender's subjective circumstances, as affirmed by reference to Hili v The Queen; Jones v The Queen (2010) 242 CLR 520.
  • Sustained dishonest conduct over four years, involving repeated false representations to vulnerable clients and losses exceeding $5 million, was treated by the sentencing court as warranting a sentence at the upper end of the available range.

Legislation and Cases Referenced

Legislation
- Corporations Act 2001 (Cth), s 1041G(1)
- Crimes Act 1914 (Cth), ss 16BA, 21B

Cases
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Baines v R [2016] NSWCCA 132
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Cahyadi v Regina [2007] NSWCCA 1
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Mulato v Regina [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Ramos v R [2015] NSWCCA 313
- Stoeski v Regina [2014] NSWCCA 161