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Court of Criminal Appeal 17 June 2024

Fineff v R

[2024] NSWCCA 102

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE HIGHLY FAVOURABLE SUBJECTIVE CASE EARLY PLEA OF GUILTY

Citation: Fineff v R [2024] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 17 June 2024
Judge(s): Leeming JA (principal judgment); Davies J and N Adams J (agreeing)

Background

The appellant was a financial planner who, between October 2016 and March 2020, induced 12 clients to lend him a total of $3,355,026.20. He falsely represented that the funds would be used to purchase shares in his employer or related companies. Instead, he gambled the money away. Six of the 12 victims were aged between 70 and 85.

The appellant pleaded guilty to 12 counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 10 years imprisonment. He received a 30% discount on his indicative sentences, comprising 25% for his early guilty pleas and an additional 5% for assistance to authorities, having reported the conduct to police after his employer was alerted to the fraud.

The District Court imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 5 years and 4 months. The appellant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of 9 years imprisonment with a non-parole period of 5 years and 4 months was manifestly excessive in all the circumstances.
  • How to weigh the appellant's exceptionally favourable subjective case (including remorse, insight, rehabilitation prospects, assistance to authorities, and early plea) against the objective gravity of the offending.
  • Whether comparable sentencing decisions from NSW and other jurisdictions supported a finding that the sentence fell outside the available range.

Decision

Leeming JA, with whom Davies J and N Adams J agreed, dismissed the appeal. The Court accepted that the appellant had presented an exceptionally favourable subjective case, but held that this did not render the sentence manifestly excessive when weighed against the objective features of the offending.

Those objective features included the appellant's position of trust as a licensed financial planner, his deliberate exploitation of that trust over a period of approximately three and a half years, the substantial total sum involved ($3.35 million), and the particular vulnerability of many victims who were elderly. The victim impact evidence demonstrated significant financial harm and emotional distress.

The Court examined a series of comparable cases, including decisions involving large-scale fraud by persons in positions of trust. It found that the cases most heavily relied upon by the appellant either involved materially less serious offending or did not disclose a subjective case as favourable as his. Critically, the absence of comparably favourable subjective circumstances in those cases made it difficult to use them to demonstrate that the present sentence was outside the available range.

The Court also noted that the non-parole period of 5 years and 4 months already reflected a substantial element of leniency. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An exceptionally favourable subjective case, including early guilty pleas, cooperation with authorities, remorse, and rehabilitation prospects, does not automatically render a substantial custodial sentence manifestly excessive where the objective gravity of the offending is high.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a financial planner who exploits a position of trust to defraud multiple clients, particularly elderly ones, over several years and for amounts exceeding $3 million occupies a serious end of the spectrum for this category of offending.
  • Where a 30% sentencing discount has already been applied for guilty pleas and assistance to authorities, an appellate court will assess manifest excess against the discounted indicative sentences rather than treating the discount as a separate factor favouring further reduction.
  • Comparable sentencing decisions must be examined with care: differences in subjective circumstances across cases can limit their utility as anchors for establishing that a given sentence falls outside the available range.
  • A Victorian County Court decision at first instance was noted to carry reduced persuasive weight, both because it was a first-instance decision from another jurisdiction and because Victorian sentencing legislation (s 6AAA of the Sentencing Act 1991 (Vic)) requires a different disclosure methodology for plea discounts in aggregate sentences than applies in NSW.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes Act 1914 (Cth), s 16BA
- Corporations Act 2001 (Cth), s 1041G
- Sentencing Act 1991 (Vic), s 6AAA

Cases
- R v Fineff [2023] NSWDC 108 (decision under appeal)
- AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133
- Elsaj v R [2017] NSWCCA 124
- Berryman v R [2017] NSWCCA 297
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Davidson v R [2022] NSWCCA 153
- Nakhl v R (Cth) [2020] NSWCCA 201
- Abellanoza v R [2021] NSWCCA 4
- PG v R [2017] NSWCCA 179
- R v Burke [2002] NSWCCA 353
- R v Hopkins [2021] NSWDC 410
- R v Clarke [2019] NSWDC 2
- The King v Hatahet [2024] HCA 23
- DPP v Luscombe [2024] VCC 370
- Barnes v Addy (1874) LR 9 Ch App 244