Citation: R v Syed [2024] NSWDC 501
Court: District Court of New South Wales
Date: 25 October 2024
Judge: Noman SC DCJ
Background
The offender was employed from 2008 as an assistant accountant at a small research and communications company. Within a year he was promoted to Financial Controller, a role carrying responsibility for all financial operations, including banking, accounting software, and authorised signatory powers over bank accounts. His salary grew from $60,000 to $185,000 over the course of his employment, and he received bonuses in addition.
From 2012, the offender began defrauding the company by making false payments to himself through the accounting systems he controlled. He disguised the payments as wages owed to named staff or as incentive payments to group participants, and processed many as part of batch transactions. This conduct continued for six years until his employment ceased, and was only uncovered when new staff became involved in financial management.
When first confronted in January 2019, the offender minimised his conduct, characterised it as being "lenient" with expense claims, and estimated the total at only $50,000. An audit revealed the true extent of the fraud. He pleaded guilty to six representative counts of dishonestly obtaining a financial advantage by deception, contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW), covering conduct across each calendar year from 2012 to 2018.
Legal Issues
- What was the appropriate objective seriousness of each representative count, having regard to quantum, number of transactions, planning, and the offender's position of trust?
- What weight should be given to mitigating factors, including the guilty plea, the absence of prior convictions, a reparation payment, and the offender's personal circumstances (including mental health and family hardship)?
- Whether the statutory non-parole period ratio should be varied to reflect special circumstances, specifically the offender's mental health and his first time in custody.
- What aggregate sentence was proportionate across the six representative counts?
Decision
The District Court found each offence to be a serious example of the offence provision, despite the relatively modest quantum per count. The totals per count ranged from $19,200 to $45,610, with the overall fraud amounting to $182,492.50. The court placed particular weight on the offender's position as Financial Controller, describing the breach of trust as operating at a high level. The offending was planned, repetitive, and sustained over six years, exploiting the systems and authority the offender controlled.
The court found no genuine remorse. The offender had initially sought to conceal and minimise the conduct, and had offered no reparation beyond allowing his leave payout to offset a portion of count 6. His expressed grievance about not receiving a pay rise was treated as inadequate explanation for conduct that began when he was well-remunerated by any measure. The plea of guilty attracted a 10% utilitarian discount, but the court declined to treat it as evidence of remorse.
In assessing comparative cases, the court noted that comparable fraud sentences involving accountants or financial controllers in the Court of Criminal Appeal had generally involved larger sums and, in some cases, gambling addiction as a contributing factor. The court distinguished those matters while drawing on their general sentencing approach. The court described the offender in terms drawn from one comparable case as "respected, greedy and unscrupulous."
The court accepted that the offender's mental health would likely deteriorate in custody and that this was his first custodial experience. These factors supported a finding of special circumstances, justifying a departure from the standard non-parole period ratio. The aggregate sentence imposed was 4 years and 9 months imprisonment with a non-parole period of 2 years and 10 months, representing a ratio of approximately 59%.
Orders Made
- The offender was convicted on each of the six counts.
- An aggregate sentence of 4 years and 9 months imprisonment was imposed.
- Non-parole period of 2 years and 10 months, commencing 25 October 2024.
- Eligibility for parole release: 24 August 2027.
- Special circumstances found, varying the statutory non-parole ratio to approximately 59%.
Key Takeaways
- A position of Financial Controller, with unrestricted access to banking and accounting systems, will attract significant weight as an aggravating feature in fraud sentencing, particularly where the breach of trust is sustained over many years.
- Indicative sentences for representative counts should reflect differences in quantum, number of individual transactions, and any reparation made, even where an aggregate sentence is ultimately imposed.
- Minimising conduct and characterising it as mere carelessness or improper expense claims, rather than fraud, is likely to undermine any finding of genuine remorse, even where a subsequent guilty plea is entered.
- Where an offender's mental health is likely to deteriorate in custody and the sentence represents a first period of imprisonment, these factors can together constitute special circumstances warranting a reduced non-parole period ratio under the aggregate sentencing regime.
- The absence of an obvious motivation such as gambling or substance abuse does not reduce the objective seriousness of sustained, planned fraud; the court treated a vague sense of financial grievance as no meaningful mitigating explanation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Victims Rights and Support Act 2013 (NSW)
Cases:
- Davies v The Queen (1996) 88 A Crim R 226
- Gaffney v R [2009] NSWCCA 160
- Hughes v R [2021] NSWCCA 238
- Johnston v R [2017] NSWCCA 53
- Kareem v R [2022] NSWCCA 188
- McLaren v R [2021] NSWCCA 12
- Porter v R [2008] NSWCCA 145
- R v Curtis [No 3] [2016] NSWSC 866
- R v P (1992) 64 A Crim R 381
- R v Webb [1971] VR 147
- Siganto v The Queen (1998) 194 CLR 656
- Siwek v R [2017] NSWCCA 178
- Whyte v R [2019] NSWCCA 218