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District Court 21 April 2023

R v Fineff

[2023] NSWDC 108

Fraud & dishonesty
SENTENCE 12 VICTIMS EARLY PLEA OF GUILTY ROLLED UP COUNTS/MULTIPLE CRIMINAL ACTS IMPACT ON VICTIMS NO PRIOR CRIMINAL HISTORY

Citation: R v Fineff [2023] NSWDC 108
Court: District Court of New South Wales
Date: 21 April 2023
Judge: O'Brien AM DCJ

Background

The offender was a senior financial adviser employed by a Sydney CBD financial planning firm, where he managed approximately 120 clients and earned a salary package of $160,000 per annum. Over a period of roughly three and a half years, from October 2016 to March 2020, he approached twelve of his own clients and obtained personal loans totalling $3,355,026.20. He told those clients the funds were needed to purchase shares in his employer's business or in other private companies, representing the arrangements as financially advantageous investment opportunities.

None of those representations were true. The funds were not applied as promised and were instead used predominantly to fund the offender's gambling. The loans were never repaid. The victims had trusted the offender precisely because he was their financial adviser and they believed he was acting in their best interests.

The offender entered early pleas of guilty in the Local Court in September 2022 and was remanded into custody in October 2022. He had no prior criminal history. The sentencing proceedings addressed twelve counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900, each carrying a maximum penalty of ten years' imprisonment.

  • What was the objective seriousness of each of the twelve fraud offences, taking into account the circumstances of the offending and the applicable maximum penalties?
  • What weight should be given to the offender's gambling disorder and other mental health conditions as mitigating factors?
  • How should the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999, particularly general deterrence and rehabilitation, be balanced?
  • What discount was warranted for the early pleas of guilty and for the offender's voluntary disclosure and cooperation with authorities?
  • Whether special circumstances existed to justify reducing the non-parole period below the statutory ratio, and if so by how much?
  • What aggregate sentence satisfied the totality principle across twelve separate counts?

Decision

His Honour assessed the offending as objectively serious. The fraud was sustained over 3.5 years, involved twelve separate victims, and caused total losses exceeding $3.35 million. The offender occupied a position of trust as a licensed financial adviser, and each victim dealt with him on the basis of that professional relationship. The offending was deliberate, repeated, and involved calculated misrepresentations. Individual frauds ranged from $60,000 to $745,000.

The offender's gambling disorder was considered in mitigation, but only to a limited degree. His Honour accepted that the disorder reduced moral culpability to some extent and bore on specific deterrence, but it could not significantly diminish the need for general deterrence or adequate punishment in cases involving serious dishonesty of this kind. The court also took into account other mental health conditions from which the offender suffered. O'Brien AM DCJ made observations, beyond their strict relevance to sentencing, about the need for broader review of incentives provided by online gambling platforms.

The offender received a 25% discount on his sentences to reflect the utilitarian value of his early pleas. The court also gave weight to his voluntary disclosure of the offending to authorities, his cooperation, his steps toward rehabilitation, his engagement in gambling reform advocacy, and his strong prospects of rehabilitation. These were significant mitigating factors, though they could not overcome the gravity of the offending.

His Honour found special circumstances justifying a reduction in the non-parole period below the statutory ratio. The finding rested on a combination of factors: the offender's excellent rehabilitation prospects, the fact this was his first custodial sentence, his need for post-release support to complete gambling rehabilitation, and his ongoing mental health needs. The court determined that an aggregate total term of nine years, with a non-parole period of five years and four months, was necessary and proportionate.

Orders Made

  • The offender was convicted on all twelve counts.
  • Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence of imprisonment was imposed consisting of:
  • A total term of 9 years, and
  • A non-parole period of 5 years and 4 months,
  • Both commencing on 13 October 2022.
  • The offender is eligible for release on parole on 12 February 2028.
  • The sentence expires on 12 October 2031.

Key Takeaways

  • A position of professional trust, such as that held by a licensed financial adviser managing client funds, is a significant aggravating factor in assessing the objective seriousness of fraud offences and the weight given to general deterrence.

  • Gambling disorder may reduce an offender's moral culpability and affect specific deterrence, but the District Court confirmed it cannot substantially displace the need for general deterrence in cases of serious and sustained financial dishonesty against multiple victims.

  • Voluntary disclosure of offending, active cooperation with authorities, and genuine steps toward rehabilitation, including engagement in broader reform efforts, are capable of carrying real mitigating weight even where offending is of considerable gravity.

  • Special circumstances warranting a reduction in the statutory non-parole period may arise from a combination of factors, including strong rehabilitation prospects, a first custodial sentence, ongoing mental health needs, and the need for supervised post-release support, provided the non-parole period still reflects the requirements of punishment and deterrence.

  • Where sentencing involves rolled-up counts or multiple criminal acts against numerous victims, the totality principle requires the court to ensure the aggregate sentence is proportionate to the overall criminality without simply accumulating individual penalties.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A

Cases
- Ahmad v R [2021] NSWCCA 30
- Bugmy v R (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- DS v R; DM v R [2022] NSWCCA 156
- Elias v The Queen (2013) 248 CLR 483
- Hili v The Queen (2010) 242 CLR 520
- Johnson v R [2017] NSWCCA 53
- McLaren v R [2021] NSWCCA 12
- Miller v R [2014] NSWCCA 34
- Nakhl v R (Cth) [2020] NSWCCA 201
- Osman v R [2020] NSWCCA 78
- Paterson v R [2021] NSWCCA 273
- R v Dawson [2022] NSWSC 1632
- R v Engert (1995) 84 A Crim R 67
- R v Ellis (1986) 6 NSWLR 603
- R v Fidow [2004] NSWCCA 172
- R v Gentz [1999] NSWCCA 285
- R v Grossi (2008) 183 A Crim R 15
- R v Henry (1999) 46 NSWLR 346
- R v Palu [2002] NSWCCA 381