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District Court 20 December 2024

R v Trevillian

[2024] NSWDC 669

Fraud & dishonesty
CRIME SENTENCE FORGERY TWO CHARGES INVESTMENT MANAGER IN FINANCIAL WORLD AGGREGATE SENTENCE

Citation: R v Trevillian [2024] NSWDC 669
Court: District Court of New South Wales
Date: 20 December 2024
Judge: Neilson DCJ

Background

The offender was an investment manager who operated through his company, Metal Alpha Pty Ltd. That company was contracted to Alpha Thorn Pty Ltd, a private investment fund that marketed itself to sophisticated, high-net-worth investors. The offender managed Alpha Thorn's investment products, which were built around a proprietary trading strategy he had developed, known as the "Gold Method."

Between April and October 2019, the offender created four false documents styled as independent audit reports from Bell Partners, a well-known accounting and advisory firm. The forged "Portfolio Performance Verification Reports" purported to show strong historical trading returns for two of Alpha Thorn's products. In reality, no such trades had ever been made, and Bell Partners had not prepared or authorised the documents.

Alpha Thorn used these forged reports to attract investors, with over $14 million invested by customers on the basis of the fabricated performance history. Once Alpha Thorn's principal became aware of the forgeries, the offender reimbursed the full amount within approximately one month.

  • Whether the offender's conduct constituted forgery under s 253(b)(ii) of the Crimes Act 1900 (NSW), which carries a maximum penalty of ten years' imprisonment.
  • What aggregate sentence was appropriate given the nature of the offences, the offender's personal circumstances, the reimbursement of investors, and the absence of direct financial loss to victims.
  • Whether the sentence should be served by way of an Intensive Corrections Order (ICO), including a home detention component, rather than full-time custody.

Decision

The District Court convicted the offender on both charges of forgery following his guilty pleas. The court accepted that the offender had fabricated documents that bore false representations on multiple levels: the documents falsely appeared to originate from Bell Partners and be signed by a named manager at that firm; they falsely claimed successful trades had occurred; they falsely attributed those trades to a specific trading platform; and they falsely reported returns that had never been achieved.

Neilson DCJ noted several factors relevant to sentence. The offender had caused severe personal hardship to himself as a result of the offences, and the full sum invested by affected customers, exceeding $14 million, was reimbursed within a month of the principal learning of the forgeries. The court acknowledged the offender's guilty plea and personal circumstances, including vulnerability in a custodial environment.

The court determined that the appropriate aggregate sentence was three years' imprisonment. However, having obtained a Sentencing Assessment Report, Neilson DCJ concluded that full-time custody was not warranted. The court found that the community's safety would not be jeopardised by the offender serving the sentence in the community, and noted that the convictions themselves would significantly curtail the offender's ability to practise in the financial services industry in Australia.

The sentence was ordered to be served by way of an ICO. The court noted that it initially sought a Sentencing Assessment Report before sentencing, but was advised that Community Corrections would not prepare such a report until sentence was formally passed. Sentence was accordingly passed on 8 November 2024, with the ICO confirmed and commenced on 20 December 2024.

Orders Made

  • The offender was convicted on each of the two forgery charges.
  • An aggregate sentence of three years' imprisonment was imposed, commencing 20 December 2024, to be served by way of an Intensive Corrections Order.
  • The terms of the ICO include:
  • No further offences to be committed.
  • Submission to supervision by a Community Corrections officer.
  • Home detention for a period of 18 months, ending 19 June 2026.
  • Completion of 300 hours of community service work.
  • The offender was directed to report to Community Corrections at Newcastle on the day of sentencing.

Key Takeaways

  • The District Court confirmed that fabricating documents to resemble independent professional audit reports, for the purpose of inducing investment, constitutes forgery under s 253(b)(ii) of the Crimes Act 1900 (NSW), even where the documents are used by a third party (rather than the forger directly) to attract investors.
  • Full reimbursement of victims, achieved promptly after discovery of the forgeries, was treated as a significant mitigating consideration in determining the appropriate form of sentence.
  • An ICO, including home detention and community service, was available as an alternative to full-time custody for serious forgery offences where the court was satisfied community safety was not at risk.
  • Procedural complications arose because Community Corrections required a formal sentencing order before it would prepare a Sentencing Assessment Report, meaning the court passed sentence first and then confirmed the ICO after the report was received.
  • The recording of convictions for forgery was noted by the court as itself carrying substantial consequences, including practical limitations on the offender's ability to continue working in financial services in Australia.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E, 253(b)(ii)

Cases:
- R v De Simoni (1981) 147 CLR 383 (High Court of Australia)
- Weaver v R [2021] NSWCCA 215 (NSW Court of Criminal Appeal)