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Court of Criminal Appeal 24 April 2026

Syed v R

[2026] NSWCCA 47

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE FRAUD REPRESENTATIVE COUNTS MATERIAL ERROR

Citation: [2026] NSWCCA 47
Court: Court of Criminal Appeal (NSW)
Date: 24 April 2026
Judge(s): N Adams CJ at CL; Hamill J; Yehia J

Background

The applicant was the financial controller of a company (CTRSR). He pleaded guilty to six representative counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW). Each count covered roughly one calendar year of fraudulent transactions, spanning from 2012 through to 15 March 2018.

The sentencing judge in the District Court imposed an aggregate sentence of 4 years and 9 months' imprisonment with a non-parole period of 2 years and 10 months. The Crown had submitted at sentence that the applicant did not voluntarily stop offending but only stopped when his employment was terminated following an internal investigation in January 2019. The sentencing judge accepted that submission and treated it as a factor aggravating the objective seriousness of the offending.

On appeal, the applicant argued for the first time that the sentencing judge's factual finding (that he had not voluntarily desisted and continued offending until his employment ended) was not open on the evidence. His employment was not terminated until 24 January 2019, but the period of offending specified in both the agreed facts and the indictment ended on 15 March 2018. There was a gap of roughly ten months with no evidence of continued offending.

  • Whether it was "reasonably open" to the sentencing judge to find beyond reasonable doubt that the applicant did not voluntarily desist from offending and only stopped when his employment ceased.
  • Whether the Court of Criminal Appeal should entertain an argument raised for the first time on appeal, where defence counsel did not challenge the Crown's factual assertion at first instance.
  • Whether the sentence was manifestly excessive (ultimately not determined).

Decision

The Court (Yehia J, with Hamill J and N Adams CJ at CL agreeing) held that the sentencing judge's factual finding was not reasonably open beyond reasonable doubt. The indictment and agreed facts specified the offending period as ending on 15 March 2018. The applicant's employment was not terminated until January 2019. There was simply no evidence from which one could infer beyond reasonable doubt that the applicant continued to offend during that roughly ten-month gap, or that he ceased offending only because he was caught. The Court acknowledged this was one possible inference, but it could not meet the beyond reasonable doubt standard required for facts relied upon in aggravation.

N Adams CJ at CL addressed a preliminary issue: the argument had not been raised by defence counsel below, despite the Crown having put its submission squarely in writing with an identified evidentiary basis. The Chief Judge applied the established exception from Zreika v R and Griffin v R, finding that where a factual issue was overlooked by defence counsel and operates unequivocally in the applicant's favour, the Court may entertain it for the first time on appeal. The error was significant because it had the capacity to affect both the assessment of objective seriousness and the finding about absence of remorse.

Having found material error, the Court's duty to re-sentence was enlivened under Kentwell v The Queen. The Court did not need to determine the manifest excess ground. On re-sentence, the Court imposed a reduced aggregate sentence of 3 years and 9 months' imprisonment with a non-parole period of 2 years, reflecting the removal of the impugned factual finding and additional subjective evidence (including evidence of remorse) available since the original sentencing in October 2024.

Orders Made

  • Leave to appeal granted.
  • Ground 1 upheld.
  • Appeal allowed; original sentence quashed.
  • Applicant re-sentenced to an aggregate term of 3 years and 9 months' imprisonment with a non-parole period of 2 years.
  • Ground 2 (manifest excess) not determined.

Key Takeaways

  • A finding that an offender did not voluntarily desist from offending constitutes a fact in aggravation that must be proven beyond reasonable doubt. The Crown cannot rely on inference alone where the evidentiary foundation, including the agreed facts and the indictment, does not support the proposition.

  • The Court of Criminal Appeal found that a gap between the particularised offending period and the date of detection or termination of employment does not automatically support an inference of continued offending; positive evidence is required to bridge such a gap.

  • Silence on a Crown factual submission at a sentencing hearing may be treated as acquiescence. The applicant's failure to challenge the submission at first instance nearly precluded the issue being raised on appeal, and the CCA permitted the new point only because the error operated "unequivocally" in the applicant's favour.

  • In confirming the narrow exception to the general rule that appellants are bound by their counsel's conduct below, the Court emphasised that the exception applies only where the overlooked issue operates unequivocally in the applicant's favour, and that this remains a "rare" circumstance rather than a routine avenue for reformulating a case on appeal.

  • Once material error in the original sentence was established, the CCA re-sentenced the applicant afresh, applying the approach in Kentwell and declining to reach the manifest excess ground. Identification of a discrete, demonstrable error rendered it unnecessary to determine whether the sentence was manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25D(2)(b)(i)
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Victims Rights and Support Act 2013 (NSW), s 97(1)

Key Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
- Griffin v R [2018] NSWCCA 259
- Edwards v R [2026] NSWCCA 15
- Fisher v R [2026] NSWCCA 27
- Hancock v R [2025] NSWCCA 213
- Snounou v R [2025] NSWCCA 231
- Britton v R [2024] NSWCCA 138
- McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542