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Court of Criminal Appeal 24 February 2025

Dimitriou v R

[2025] NSWCCA 18

Fraud & dishonesty

Citation: Dimitriou v R [2025] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 24 February 2025
Judges: Mitchelmore JA; Basten AJA; Wright J

Background

The appellant was a co-director of a financial services company. Between late 2011 and early 2012, he caused false financial documents and a misleading letter about a loan's purpose to be submitted to ANZ Banking Group through a loan broker, in support of a loan application made in the name of a related company. ANZ approved and advanced two loans totalling over $1.86 million on the basis of that false information.

The appellant was tried before a judge sitting alone in the District Court and convicted of one count of dishonestly causing a financial disadvantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). He was sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months.

He sought leave to appeal against both conviction and sentence on eight grounds before the Court of Criminal Appeal.

  • Whether s 192E requires proof beyond reasonable doubt that the accused intended to cause financial disadvantage, or was reckless as to that outcome, as a separate mental element
  • Whether the trial judge gave sufficient weight to the appellant's good character evidence
  • Whether the trial judge properly applied the unreliable witness warning (under s 165 of the Evidence Act 1995 (NSW)) when assessing witnesses who may have been implicated in the offending
  • Whether the verdict was unreasonable given the evidence
  • Whether a miscarriage of justice arose from a variance between the indictment, the Crown case, and the trial judge's directions, specifically over whether the appellant personally "submitted" the false documents or merely caused them to be submitted
  • Whether the sentencing judge erred by taking into account deceptions beyond the operative deception charged, and a breach of trust owed to a person other than ANZ
  • Whether the sentencing judge erred in concluding that specific deterrence was not diminished by the appellant's prior good character and absence of reoffending

Decision

Ground 1: No additional mental element. The Court held that s 192E does not contain a separate requirement that the accused intended to cause financial disadvantage, or was reckless as to that outcome. The dishonesty element, defined by s 4B of the Crimes Act, is distinct from any state of mind regarding the consequence of financial disadvantage. Basten AJA added that, in any event, the financial disadvantage was the sole purpose of the deceptive conduct, so intention as to that consequence was not realistically in issue.

Grounds 2 and 3: Good character and witness reliability. Good character was one of many factors the trial judge was required to weigh. Given the strength of the findings against the appellant, the absence of further explicit reference to good character did not constitute an error. On the unreliable witness warning, the trial judge did not rely on those witnesses' oral evidence to ground the critical inference; she relied instead on a substantial body of documentary evidence, so no obligation arose to explain why she had overcome the caution.

Grounds 4 and 5: Unreasonable verdict and variance. The Court rejected the argument that the word "submitting" in the indictment required the appellant to have personally and physically transmitted the loan application. From the outset of the trial, the Crown's case was that the appellant caused false documents to be submitted via a broker, and the defence understood and ran the trial on that basis. The documentary evidence comfortably supported the inference that the appellant provided the false materials. The Court also confirmed that a temporary financial disadvantage suffices for the offence.

Grounds 6 to 8: Sentence. In assessing the objective seriousness of the offence, the sentencing judge was required to consider the nature and sophistication of the deception directed at ANZ, which necessarily involved examining the appellant's related dishonest conduct. That was not a consideration of irrelevant matters. On specific deterrence, the Court found no error: the decision in Totaan v R does not establish that a finding of low likelihood of reoffending automatically diminishes the need for specific deterrence, and the sentencing judge was not required to make the same finding as in that case.

Orders Made

• The orders proposed by Mitchelmore JA are agreed to

Key Takeaways

  • Section 192E(1)(b) of the Crimes Act 1900 (NSW) does not require proof of a separate intention or recklessness as to the financial disadvantage outcome; the dishonesty element, defined by s 4B, does not import an additional mental element directed at the consequences of the deception.

  • A conviction for causing false information to be submitted to a financial institution does not require that the accused personally and physically transmitted the documents; causing submission through an intermediary such as a broker is sufficient, provided the case was put and understood on that basis from the outset.

  • A temporary financial disadvantage, such as one arising from a secured loan where the lender retains the ability to recoup funds through a power of sale, satisfies the disadvantage element of the offence.

  • In sentencing for fraud, a judge may legitimately consider the full nature and sophistication of the deception directed at the victim, including related deceptions forming part of the same scheme, without that amounting to impermissible consideration of irrelevant matters.

  • Totaan v R does not establish a general rule that prior good character or an absence of reoffending diminishes the weight to be given to specific deterrence; sentencing judges retain a discretion in how they weigh those factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4B, 192B, 192D, 192E, 192F, 192G
- Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Code Act 1995 (Cth), ss 134.1, 134.2, 135.1
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 165

Cases
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Baker v R [2023] NSWCCA 262
- Salameh v R [2024] NSWCCA 239
- Cook (a pseudonym) v R [2022] NSWCCA 282
- Bazouni v R [2021] NSWCCA 256
- Rassi v R [2023] NSWCCA 119
- Flack v R [2011] NSWCCA 167
- Hughes v R [2021] NSWCCA 238
- Constantinidis v R; Lazar v R [2022] NSWCCA 4
- Duncan v Independent Commission Against Corruption [2016] NSWCA 143
- Attorney-General's Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW); Re Robert Burton (a pseudonym) [2021] NSWCCA 87