McLaren v R [2021] NSWCCA 12 (15 February 2021)

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McLaren v R [2021] NSWCCA 12 (15 February 2021)

Last Updated: 15 February 2021

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	McLaren v R
Medium Neutral Citation:	[2021] NSWCCA 12
Hearing Date(s):	17 June 2020
Decision Date:	15 February 2021
Before:	Hoeben CJ at CL at [1] Rothman J at [2] Hamill J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal against sentence allowed. (3) Quash the sentences imposed by the District Court in relation to the (17) offences of obtaining a financial advantage by deception and in lieu thereof: The applicant is sentenced to an aggregate term of imprisonment of 12 years commencing on 11 July 2017 and expiring on 10 July 2029 with an aggregate non-parole period of 9 years. The applicant will first become eligible for release on parole on 10 July 2026. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, confirm the following indicative sentences for the individual offences: (i) Sequence 1: 4 years, 6 months. (ii) Sequence 10: 4 years. (iii) Sequence 11: 4 years. (iv) Sequence 22: 3 years, 9 months. (v) Sequence 23: 4 years. (vi) Sequence 32: 6 years. (vii) Sequence 38: 4 years. (viii) Sequence 43: 1 year, 6 months. (ix) Sequence 44: 4 years, 6 months. (x) Sequence 46: 6 years, 9 months. (xi) Sequence 47: 3 years, 9 months. (xii) Sequence 48: 6 years. (xiii) Sequence 51: 6 years. (xiv) Sequence 57: 2 years. (xv) Sequence 73: 2 years, 3 months. (xvi) Sequence 74: 5 years. (xvii) Sequence 76: 4 years. (4) For the offence of dealing with proceeds of crime, confirm the concurrent fixed term of 7 years and 6 months commencing on 11 July 2017 and expiring on 10 January 2025.
Catchwords:	CRIMINAL LAW - appeal against sentence - fraud offences - dishonestly obtain by deception - multiple counts - extremely serious example of fraud - judgment on sentence - emotive and pejorative language - whether appropriate balance in sentencing proceeding maintained - whether judge “transmogrified” into “champion of victims” - judicial detachment - temperance - “pep talk” to media - judicial function - whether subjective circumstances disregarded - manifestly excessive aggregate sentence - whether plainly wrong or unjust
Legislation Cited:	Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(2)
Cases Cited:	Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2 Berryman v R [2017] NSWCCA 297 De Angelis v R [2015] NSWCCA 197 Decision Restricted [2019] NSWSC 1109 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gaffney v R [2009] NSWCCA 160 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 Johnston v R [2017] NSWCCA 53 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 McKittrick v R [2014] NSWCCA 128 Pereira v R [2018] NSWCCA 171 PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Albert [2019] NSWDC 869 R v Burke [2002] NSWCCA 353 R v Clarke [2019] NSWDC 2 R v Dimitri De Angelis [2013] NSWDC 79 R v Kennedy [2019] NSWDC 359 R v Nykolyn [2012] NSWCCA 219 SHR v R [2014] NSWCCA 94; (2014) 241 A Crim R 544 Siwek v R [2017] NSWCCA 178 Strbak v The Queen [2020] HCA 10; (2020) 280 A Crim R 285 Stroud v R [2019] NSWCCA 249 Whyte v R [2019] NSWCCA 218 R v Moore (NSWCCA 12 April 1994, unreported)
Category:	Principal judgment
Parties:	Hamish Earle McLaren (Applicant) Regina (Respondent)
Representation:	Counsel: G Wendler (Applicant) F Veltro (Respondent) Solicitors: Monica McKenzie Solicitors (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2017/210899
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal Law
Date of Decision:	20 June 2019
Before:	Acting Judge Charteris SC
File Number(s):	2017/210899

JUDGMENT

1. HOEBEN CJ at CL: I agree with Hamill J and the orders which he proposes.
2. ROTHMAN J: I agree with the orders and reasons for judgment proposed and circulated by Hamill J.
3. HAMILL J: Over a six year period from 2011 to 2017, the applicant, Hamish McLaren defrauded about 15 separate victims while operating a ‘Ponzi scheme’.^[1] The applicant defrauded his victims of a total of $7.6 million. He was charged with 17 counts of dishonestly obtaining a financial advantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW) and one count of knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act (“the proceeds offence”). These offences carry maximum penalties of imprisonment for 10 and 15 years respectively. There is no standard non-parole period associated with either offence.
4. The applicant pleaded guilty in the Local Court and was sentenced in the District Court by Acting Judge Charteris SC on 20 June 2019. The judge indicated that he was entitled to a 25% discount for his early plea of guilty. For the 17 counts under s 192E, the applicant was sentenced to an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years. For the proceeds offence, he was sentenced to a fixed term of imprisonment of 7 years and 6 months, to be served concurrently with the aggregate sentence. The applicant is eligible for parole on 10 July 2029.
5. The applicant seeks leave to appeal against these sentences on the following grounds:

(1) That the sentencing process was unbalanced and attended by error in principle in that the Court’s focus was almost entirely upon the objective criminality of the applicant rendering the applicant’s plea of guilty at the earliest opportunity, his subjective circumstances and his rehabilitation of little consequence.

(2) That the aggregate sentence imposed upon the applicant was manifestly excessive as to both the total sentence and the non-parole period.

The facts and circumstances giving rise to the offences

6. There was a comprehensive and agreed statement of facts tendered on sentence. Charteris SC ADCJ set out in detail the factual background of applicant’s offending in his judgment on sentence. What follows is a brief summary of the circumstances of the applicant’s offending in relation to each of his victims.

Sequence 1 – Katrina Navratil

7. Between 2012 and 2015, the applicant defrauded Ms Navratil of a total of $564,696.66. Following her separation from her husband and the death of her father, Ms Navratil was looking to invest her money, and chose to do so with the applicant, whom she believed to be an investment fund manager. The applicant misled Ms Navratil, claiming that he could make her a considerable profit on her proposed investment.
8. The applicant advised the victim to set up a self-managed super fund which was (unbeknownst to the victim) linked to the applicant’s residential address to prevent her from monitoring the account. The applicant siphoned money from the victim’s superannuation fund and deceptively provided information to her as to the value of her investment.
9. In late 2014, the victim became aware of irregular financial activity in relation to her account. She demanded the return of her investment funds. Ms Navatril ultimately received $248,400 in sporadic payments from the applicant; however, an amount of $316,296.66 is outstanding.

Sequences 10 and 11 – Glenn and Vickie Pickard

10. Mr and Mrs Pickard were aged in their mid-50s at the time of the offending. The applicant falsely held himself out to be a financial investor who handled millions of dollars with the Commonwealth Bank. He told the victims that he could earn them a considerable profit on their investment, this time by trading on the stock market. The applicant arranged for the victims to set up a self-managed super fund. Mr Pickard sent $425,000 of his superannuation to the applicant to invest in that fund, which was to be managed by the applicant.
11. The Pickards invested an additional $200,000 (redrawn off their home loan mortgage account) as a result of the misleading representations of the applicant in relation to a short-term investment opportunity in shares in a gold mine in Papua New Guinea. Instead of investing the money, the applicant transferred it between his own accounts and used the money for ulterior purposes, including repayments to other victims.
12. The applicant manipulated the Pickards and defrauded them of a total of $754,900 between 2013 and 2015. The applicant falsified documents, blatantly lied to the victims and preyed on their vulnerability for his own personal gain. The applicant returned some of the money owed to the victims and purchased them a second-hand Toyota Corolla; however, there remained about $607,000 outstanding.

Sequences 22 and 23 – Joshua and William Hilliard

13. Mr William Hilliard is the father of Mr Joshua Hilliard, who had known the applicant for a number of years and considered him a friend. The applicant claimed that he worked in the finance industry. In early 2014, following a discussion between Joshua and the applicant, Joshua transferred a sum of $5,000 to the applicant on the understanding he would invest it in the stock market.
14. In late 2014, the applicant falsely informed Joshua that the value of his investment had doubled. Joshua transferred an additional $210,000 to an account controlled by the applicant, which comprised $150,000 from William Hilliard’s superannuation account, $5,000 of Joshua’s mother’s savings, and $55,000 of Joshua’s own money.
15. Following another of the applicant’s misrepresentations regarding a short-term investment opportunity, Joshua transferred $18,300, on the agreement that the applicant would pay Joshua $3,500 on top of his investment with a quick turn-around.
16. In April 2015, the applicant had a conversation with the Hilliards. The applicant said the value of the Hilliards’ family investment had doubled, and Goldman Sachs was going to buy the fund which would increase its value even further. As a result of this conversation $300,000 was transferred to the applicant.
17. The money was never invested as agreed. Rather, the applicant retained the money for his own personal use and used the harvested funds to partially reimburse other victims. The applicant defrauded the Hilliards of a total of $515,000 from 2014 to 2017. An amount of $428,000 is still outstanding.

Sequence 32 – Nicole Mozes

18. Ms Mozes was in her forties and was a “full-time mum”. She was introduced to the applicant by a mutual acquaintance with whom she had discussed the settlement she anticipated to receive as a result of her separation from her ex-partner. In early 2016, the applicant visited Ms Mozes’ home and spoke with her about investing her money. The applicant assured Ms Mozes that he could make a 20% profit on her investment in a three-month period and advised her to act quickly.
19. Ms Mozes gave the applicant a cheque for $150,000 to invest on the proviso that the applicant would invest the funds, manage the capital and generate a profit for her. The applicant did not fulfil his promise but cashed the cheque through one of his own accounts instead.
20. The applicant met with Ms Mozes on a number of occasions throughout 2016. He convinced her to invest more money through him. Ms Mozes made out additional cheques to the applicant totalling $670,674.74. The applicant also transferred this money into accounts he controlled and used it for his own personal use. The applicant stopped meeting with the victim after he had defrauded her of virtually her entire life savings.
21. The applicant defrauded Ms Mozes of a total of $820,647.74 and she is still owed $768,847.74, after recovering a small amount from him.

Sequence 38 – Tracy Hall

22. Ms Hall met the applicant, who went by the name of “Max Tavita”, through a mobile dating application on 11 May 2016. The pair commenced an intimate relationship. The applicant told the victim that he worked in financial markets and never disclosed his true identity to Ms Hall.
23. The applicant told the victim about a short-term investment opportunity and assisted her in setting up a self-managed superannuation fund. The applicant promised to invest her funds, manage her capital investment and generate profit for her. Ms Hall transferred $10,000 to the applicant for that purpose. She also wrote a cheque for $187,000, which was in part her superannuation, believing it was going into an account in her name, which the applicant could access. The applicant provided a falsified document to Ms Hall that appeared to be a record of trading activity for an account in her name and indicated a value of $394,0000. Ms Hall subsequently transferred further amounts of $80,000 and $40,000 to the applicant for him to invest.
24. None of this money was invested. The applicant transferred the money into accounts he controlled and used some of it to meet the repayment demands of his earlier victims, while falsely representing the profitability of her investments to Ms Hall. The applicant defrauded Ms Hall of a total of $317,000.

Sequence 43 – Patrick Cahill, Tina Danyi and David Cahill^[2]

25. In early 2017, the applicant met Patrick Cahill at a surf shop part owned by him and his partner, Tina Danyi. The applicant held himself out to be a registered and practicing barrister who had experience in financial matters and dealing with high profile clients.
26. Mr Cahill and Ms Danyi engaged the applicant to resolve Ms Danyi’s ongoing legal dispute with her former employer and boss who were pursuing her for money allegedly owed to the company. The applicant introduced Ms Danyi to a practising solicitor and advised that despite being a “barrister”, he would be instructing the solicitor for Ms Danyi.
27. Having provided assistance to the victims, the applicant approached Mr Cahill in mid-2017, requesting $33,270.42. He stated that he needed the money in anticipation of settlement of the legal dispute. The applicant advised Mr Cahill to obtain a loan from his father. Patrick’s father, David Cahill, drew a cheque in the sum requested. That cheque was given to the applicant, which he again used for his own personal purposes. That amount has not been repaid.

Sequences 44, 46 and 47 – Peter and Lorraine Cross

28. Mr and Mrs Cross were retirees. Mr Cross had sustained serious work-related injuries and was not capable of full-time work. The applicant met Mr and Mrs Cross at a restaurant through their granddaughter. He held himself out to be a financial professional who regularly traded on the stock market.
29. The applicant persuaded Mr and Mrs Cross to invest their money with him. In mid-2011, Mrs Cross obtained a cheque of $150,500 drawn from her savings and provided it to the applicant. The applicant lied to the victims about the increasing value of their investment. Mr and Mrs Cross’ gave the applicant a further $362,000 on one occasion, approximately $1 million on another occasion, and a further $200,000 on the final occasion.
30. These funds were mostly from the sale of the Cross’s home and their superannuation funds. The applicant did not invest this money, but rather used it for his own purposes. In total, the applicant defrauded Mr and Mrs Cross of a total of $1,712,500. They are still owed $1,143,304.

Sequence 48 – Lisa Ho

31. Ms Ho is an Australian fashion designer who owned two related companies. Her husband and a friend had both invested money with the applicant. Ms Ho met with the applicant (and her Chief Finance Officer) and expressed her interest in investing her superannuation.
32. The applicant convinced Ms Ho to transfer him a total of $850,000. The applicant did not invest these funds; rather they were the subject of the applicant’s discretionary spending. The applicant provided Ms Ho with regular (false) updates as to the successful performance of her investment. The victim also agreed to list her business on the stock market on the advice of the applicant.
33. After some time, Ms Ho made relevant inquiries, became suspicious and demanded the return of her money. The applicant provided a litany of excuses. In mid-2013, Ms Ho’s business group became insolvent and went into administration. Ms Ho pursued legal proceedings against the applicant, resulting in settlement in late 2014. The applicant repaid some of the monies owed under this settlement agreement. In late 2016, the applicant was declared bankrupt and a trustee was appointed.
34. In total, the applicant defrauded Ms Ho of $850,000 of which $350,000 remains outstanding.

Sequences 51 and 57 – Tracey Maroc

35. Ms Maroc met the applicant through Ms Navratil. In 2012 and 2013, Ms Maroc was unemployed and suffering from severe medical issues. Shortly after, she finalised her separation settlement with her ex-husband and sold the family home.
36. In early 2014, at a dinner attended by the applicant, Ms Maroc and Ms Navratil, the applicant purported to be an investment funds manager who had worked with Goldman Sachs and attended Harvard Business School. He described himself as a ‘high frequency trader’. The applicant and Ms Maroc met regularly over the next few months.
37. Over this period, Ms Maroc transferred a considerable sum to the applicant on the proviso that he would manage her investment and make a substantial (17%) profit. The applicant made false representations to Ms Maroc about the status of her money and convinced her that her investment was performing well.
38. The applicant defrauded Ms Maroc of a total of $1,049,000. Only $30,000 of this has been repaid and $1,019,000 remains outstanding.

Sequence 73 – Julie Sullivan

39. Ms Sullivan also came to know the applicant through a mutual friend; however, she knew him by the name of “Hamish Maxwell”. In early 2016, the applicant contacted Ms Sullivan stating that he wanted to start a hedge fund.
40. In due course, Ms Sullivan transferred $100,000 to the applicant at his request. He promised to pay her 18% interest. This money was not invested and the applicant deposited it in his own accounts. Only $19,600 was repaid. A sum of $80,400 is outstanding.

Sequences 74 and 76 – Karen Lowe

41. In early 2015, Ms Lowe met the applicant through Ms Maroc. The applicant told Ms Lowe he was a share trader and operated an asset management company.
42. The applicant persuaded Ms Lowe her to apply for a $1 million loan to pay for renovations to her Mosman home and pay off a separate loan. The applicant agreed to invest the remainder on her behalf. The applicant organised this loan for Ms Lowe, who transferred $650,000 of the total amount to the applicant to be invested as per their agreement.
43. After returning from a trip to New York with the applicant and some friends, Ms Lowe was asked by the applicant to sign some forms in relation to her loan. The applicant misled Ms Lowe as to the purpose of these forms and she proceeded on the understanding that their purpose was to update her details with the bank. The applicant instead used these forms to increase Ms Lowe’s loan amount from $1 million to $1.3 million. On the day the loan increase was approved, $300,000 was transferred from Ms Lowe’s account to an account in the applicant’s name.
44. The applicant reassured Ms Lowe that her investments were making a profit while using her money to repay his other victims. In mid-2015, Ms Lowe became aware of the unauthorised transfer.
45. In total, the applicant defrauded Ms Lowe of $950,000. A sum of $843,374 is still owing.

Sequence 31 – Knowingly deal with proceeds of crime

46. This offence was based on the movement of the fraudulently obtained funds through something like 30 bank accounts owned or controlled by the applicant and several registered businesses. The businesses appeared to have no legitimate purpose other than to be used as a conduit through which the money passed. The proceeds of the fraudulent activity totalled $7,667,014.82.

Subjective Case

47. The applicant was aged 41 to 47 at the time of his offending which spanned a period of six years. He was 49 years old at the time of sentence. By June 2019 the applicant had spent approximately 2 years in custody. He will be in his sixties by the time the sentence imposed by the sentencing Judge expires. The applicant had no previous convictions recorded in NSW. However, Charteris SC ADCJ did not regard the applicant as a first offender as he “may have been considered a first offender at the time of his first offending but that has been swamped by the behaviour that continued on over the next six years” (ROS 42). His Honour found that the applicant’s early plea of guilty was “the only mitigating feature” (ROS 46). His Honour found the applicant’s prospects of rehabilitation to be “extremely guarded” (ROS 43) and was loath to find “at all” that the applicant was unlikely to re-offend having regard to the offender’s “planned and deceitful conduct” (ROS 42).
48. The applicant tendered a bundle of documents on sentence including a one- page handwritten letter to the sentencing Judge and a signed document undertaking to do anything to allow for the release of funds to the victims from any of his personal and company accounts (including superannuation entitlements). Charteris SC ADCJ said at ROS 35:

“I must say that that letter and the other material tendered does not persuade me remotely that this man is sorry for others. I do not believe he has any remorse. I believe he is consumed by himself. He was driven by stealing the money of other citizens, all of whom trusted him and were no doubt good people. His one focus was his wellbeing, so that he could live apparently the high life, spending the retirement savings they had put aside for their autumn years. I consider it is likely he is sorry only about his own predicament; that is what he regrets. He has proceeded on the basis that he would not be brought to account, that his judgment day would not come. I am not impressed by his letter when it is considered with the remaining material before the Court.”

49. In relation to remorse, Charteris SC ACDJ said at ROS 42:

“It was urged upon me that I should accept that the offender by his plea and by evidence of his statements to others (including his brother-in-law, the psychologist, and the psychiatrist) is remorseful. The law provides for a discount from a sentence if someone is remorseful as defined in the legislation. As I have already observed, regrettably I have come to the view that Mr McLaren is not remorseful. Mr McLaren is sorry for no one other than himself. He is sorry for his own predicament. He is not truly sorry for the ruinous results of his outrageous conduct.”

50. Surf Lifesaving Records demonstrated the applicant’s involvement since about 2006. Charteris SC ADCJ found this was “to [the applicant’s] credit” (ROS 38).

Psychologist and Psychiatrist Reports

51. Reports from Dr Richard Furst, a psychiatrist, and Mr Philip Gorrell, a psychologist, were tendered on sentence. The applicant was assessed by Dr Furst on 1 February 2019 and by Mr Gorrell on 4 and 14 February 2019. The history provided by the applicant at each assessment was described as “broadly consistent” by Dr Furst. However, Mr Gorrell noted that his interview with the applicant was “full of inconsistencies and those inconsistencies appear to be based on Mr McLaren attempting to represent himself in a positive light”. Despite this, Mr Gorrell extracted the information he believed to be consistent and concluded that:

“Mr McLaren’s offences appear resultant of an unusual upbringing where he felt he had to earn acceptance from his father by achieving highly in sport; being abandoned by his parents whilst still at school; being a loner who from the upbringing interaction with his father, believed in the importance and need to impress others.”

52. At around the time the applicant was in year 10 of high school, his family relocated away from Sydney and he resided with a foster family. At the end of year 10, he left high school and started working as a gardener and a landscaper. He worked in search and rescue and as a ski instructor in the snowfields of Canada and New South Wales. He began share trading in 1995 as a trainee. By the early 2000s he had established his own trading business. The business did not do well and resulted in a civil court case in 2003 and, ultimately, his bankruptcy. Charteris SC ADCJ took into account the applicant’s previous bankruptcy as a factor militating against the applicant’s prospects of rehabilitation and likelihood of reoffending. The adverse publicity from that event led the applicant to relinquish his family name and adopt the name “McLaren”. It also took a toll on his family relationships and as a result he has since had no contact with one of his sisters. In 2016 he saw his father for the first time in 16 years. The applicant separated from his wife in December 2012 and described his life at that point as “spiralling out of control”.
53. Charteris SC ADCJ noted that the applicant provided an account of his personal and employment history to Dr Furst and Mr Gorrell. His Honour noted that “the offender is able to put the most favourable gloss on many things including his previous work history” (ROS 40).
54. Mr Gorrell administered a Beck Depression Inventory test which measures attitudes and symptoms of depression based on self-report. The applicant scored 40 which equates to a possible diagnosis of severe depression. Mr Gorrell suspected that the applicant “was providing answers that he best thought would help his cause”. Mr Gorrell also administered the Personality Assessment Inventory (PAI), although due to the applicant’s scores on validity subscales, the test results could not be considered valid. Mr Gorrell concluded that the applicant’s responses appeared to be “an attempt to best represent himself rather than be truthful”. Similarly, Dr Furst reported that the applicant’s demeanour was inconsistent with the above results and that there is “clearly a large degree of psychopathology in [the applicant’s] presentation and patterns of behaviour”. Charteris SC ADCJ concluded that the findings by Mr Gorrell and Dr Furst were “not favourable” to the applicant.
55. Charteris SC ADCJ found the applicant was motivated by greed and not need. His Honour accepted the conclusions of Dr Furst’s report which stated:

“Although he now expresses regret, Mr McLaren’s actions over a number of years have demonstrated a callous disregard for the multiple victims of his fraudulent offences, most of whom lost substantial sums of money, if not their life savings. In this respect, I am of the opinion Mr McLaren’s actions were likely driven by greed and deficient personality traits rather than any overt mental illness or mental disorder.”

Character references

56. Written character testimonials were provided by Christopher Rourke, the applicant’s brother-in-law and Barry Kachkowski, a friend whom the applicant met skiing in Canada in 1989. Mr Kachkowski described the applicant as a “supportive and loyal friend” and his behaviour as “uncharacteristic”. He believed the applicant’s divorce “took a heavy toll on him mentally and emotionally” due to being cut off from his three step-sons. Charteris SC ADCJ concluded that this testimonial was “not of much moment” (ROS 38).
57. Mr Rourke described the applicant as a “loving and fun uncle to my four children, a caring and protective brother to his sister Julie and a solid mate to me”. He considered the applicant to be remorseful and determined to “turn his life around”. Charteris SC ACDJ did not share Mr Rourke’s optimism and found him to be unreliable (ROS 36 and 38).
58. Mr Rourke also gave evidence orally before the Court during the sentence proceedings. He gave evidence that he worked with the applicant in futures trading in or around 2000. Mr Rourke traded with his own money, but the applicant was trading with clients’ money and Mr Rourke described him as “disorganised”, “impulsive” and unable to “read the market”. He was cross-examined on his comments to Mr Gorrell, which were included in the psychologist’s report:

“Q. You've told the psychologist he wants people to think the best of him. He buys nice suits to impress; do you remember telling the psychologist that?
A. Yes.
Q. You also said, "A strange thing about him is that he will watch a James Bond movie and then will dress like James Bond. He will drive cars like what James Bond drives;" do you remember telling the psychologist that?
A. Yes, sir.
Q. What were you referring to? Were you suggesting that he was a fantasist, in your opinion?
A. Yeah, I mean, he, he's just got a, a personality where he'd, he'd watch something and get totally involved in it and think that he could be it.”

59. Mr Rourke gave evidence that the applicant “had a tendency to tell lies” and was diagnosed with bipolar disorder for which he received medication. There was no other evidence of this. Dr Furst found that there was “no indication that [the applicant] suffered from a major mental illness in his teens, adolescence or early 20s” and noted that he did not have any emergency psychiatric presentations or admissions.
60. Mr Rourke gave further evidence that the applicant had owned an Aston Martin and two Ferraris, although at the time Mr Rourke believed these cars were on loan from the car dealer.
61. A total loss of $5.4 million was unexplained after accounting for repayments made to the victims, investment fees and unsuccessful trading losses. In oral submissions, Mr Wendler urged the court to accept that this money was spent “on lifestyle situations” including cars and first-class travel. The prosecution was unable to prove where the money was spent or where it was now, if there was any left.

Medical evidence regarding Julie Rourke

62. There was evidence tendered concerning the applicant’s sister, Ms Julie Rourke’s medical condition. A letter from Dr S. T. Terrence Ting confirmed that Mrs Rourke suffered from “COPD”^[3] and confirmed a recent diagnosis of lung cancer. An examination report of a whole body and CT scan dated 24 January 2019 was also tendered. Mr Rourke gave evidence that Mrs Rourke was not present in Court as a result of that condition.

Time in custody

63. A number of documents were tendered relating to the applicant’s time in custody which Charteris SC ADCJ said he took into account. However, he made no positive findings in relation to those matters. There were letters and certificates from Emmaus Correspondence School which showed the applicant had undertaken bible studies and received “excellent” results. A letter from Robert Dundas, a prison chaplain, stated that the applicant was meaningfully engaged in Sunday Services and that he was “polite, friendly and engaged” and “asked questions that indicated personal growth”. TAFE certificates showed that the applicant had completed courses in electrical safety and first aid. Case notes from the NSW Department of Corrective Services were also tendered and paint a positive picture of the applicant’s time in custody, describing him as a diligent member of the maintenance team. On one occasion the applicant spent the entirety of the day unblocking three toilets. On another occasion, the applicant provided first aid to another inmate who had collapsed and was commended for his “compassion and professionalism”.
64. The applicant appeared to be using his time in custody productively. The expert reports note that the applicant reported being exposed to highly distressing situations including “stabbings and bashings”. Dr Furst was of the opinion that the applicant required psychological counselling in relation to his apparent trauma and adjustment to being incarcerated (AB 146).

Special Circumstances

65. Charteris SC ADCJ said at ROS 46:

“The prosecution submits that there is no basis upon which the Court could reduce the minimum period from the statutory 75% contemplated by the relevant legislation. However Mr Wendler urged me to find special circumstances. The superior courts have made it clear that ‘special’ means ‘special’. I do not find any special circumstances for this offender. He should serve the full amount of the 75% minimum period.”

Ground One

That the sentencing process was unbalanced and attended by error in principle in that the Court’s focus was almost entirely upon the objective criminality of the applicant rendering the applicant’s plea of guilty at the earliest opportunity, his subjective circumstances and his rehabilitation of little consequence.

66. While the applicant did not challenge specifically any of the adverse factual findings made by the sentencing Judge, he submitted that the record of proceedings, and the judgment on sentence, demonstrated that the approach of the sentencing Judge was unbalanced and focused almost entirely on the objective seriousness of the offence while disregarding the applicant’s lack of convictions and personal circumstances. In essence, it was submitted that the Judge became the victims’ advocate and exhibited a lack of judicial impartiality and detachment. It was submitted that this “[rendered] the Applicant’s subjective circumstances of titular value”. The same was said of the 25% discount for the early plea of guilty. While counsel correctly acknowledged that the discount was applied to the individual or putative sentences, in accordance with the authority of this Court,^[4] it was pointed out that if one considered the aggregate sentence, the starting point was around 21 years with a non-parole period of around 16 years.
67. On the hearing of the appeal, counsel submitted that “his Honour effectively transmogrified himself as a champion of the victims”. Mr Wendler expanded on those submissions by reference to a number of parts of the transcript of proceedings and the judgment on sentence. He submitted:

“His Honour then went on to make this further observation:

‘In my experience as [a] lawyer and as a judge living in our community, the members of our community absolutely abhor the fraudulent activities of individuals who target the assets of other innocent citizens and steal those assets. I’ve been a judge in this Court for more than 16 years and later years as an acting judge, and as a lawyer [I have practised] since 1973. I have appeared for the prosecution and the accused in jury trials over the years. In my association with the criminal [law] there’s always been knowledge that our community disapproves in the strongest terms of people engaged in such fraudulent conduct. The law itself acknowledges that position’.

Within the terms of s 3 of the Sentencing Act much of that passage is justified. The collateral flavour of that passage clearly, in my respectful submission, insinuates that his Honour took a particular stance against this offender, aligned himself as a champion with the victims and sought in effect to be their cudgel so far as the sentencing exercise is concerned.”^[5]

68. It is impossible to avoid the conclusion that there is real substance in Mr Wendler’s submissions. It is one thing for a Judge to make almost exclusively adverse findings against a person standing for sentence and to emphasise the serious and repetitive nature of the offending and the impact of the crimes on the victims. It is another thing for the sentencing proceedings and remarks to give the appearance of a lack of temperance and impartiality. In this case, there was perhaps no individual comment or incident that, considered in isolation, gave rise to such concerns. However, there was an accumulation of comments and observations all going the one way. To provide some examples of the emotive language employed in the course of the proceedings, his Honour said:

“To manipulate these unfortunate victims so as to steal virtually all superannuation moneys of Mr and Mrs Prickard is a very serious example of breach of the relevant section.” (ROS 10)
“He had no empathy for them” (ROS 10)
“One can ask the rhetorical question, how could this man have acted in this way? How could he have deceived person’s so as to swindle them out of superannuation they had earned through their working lives. The question is easily answered. He was readily able to do that. He had no empathy clearly for the victims. He treated them contemptuously.” (ROS 16)
He encouraged her to invest money with him, promising her, his partner, there was no chance the money could be lost. How could he utter those words knowing his earlier history of investing other people’s money?” (ROS 17)
“A man who had spent six years spinning yarns to people and having the gift of the gab did not want to talk to the police about what he had been doing and was unusually silent.” (ROS 33)
“He has had absolutely no compassion for the victims.” (ROS 33)
“His behaviour is the most reprehensible one could imagine having regard to offences of this nature” (ROS 33)
“As a man who is able to charm people with the gift of the gab to separate them from their savings there is a paucity of explanation from him.” (ROS 34)
“I believe he is consumed by himself.” (ROS 35)
“I observe that if the offender has received the massive disapproval of the community it is appropriate that he should do so. In my experience as a lawyer and as a judge living in our community the members of our community absolutely abhor the fraudulent activities of individuals who target the assets of other innocent citizens and steal those assets.” (ROS 36)
“The offender may have been considered a first offender at the time of his first offending but that has been swamped by the behaviour that continued on over the next six years.” (ROS 42)
“Mr McLaren is sorry for no one other than himself. He is sorry for his own predicament. He is not truly sorry for the ruinous results of his outrageous conduct.” (ROS 42)
“You conducted yourself as though you would not have a judgment day. You were mistaken. That judgment day is today.” (ROS 52)

69. The reference to the applicant not speaking to the police or giving evidence in the proceedings was inapposite,^[6] and the ominous quasi-religious flavour of the reference to “judgment day” was unnecessary and inappropriate.
70. His Honour, as he was entitled to do, relied on his vast experience as a practitioner and judge but did so in similarly emotive language. This passage, to which the Court was taken at the appeal hearing, is reproduced above at [67].
71. Finally, having imposed what appears to be the highest sentence recorded in New South Wales for offending of this kind, the sentencing Judge delivered what he described as a “pep talk” to the media:

“There are a number of people from the media here. My experience is that the media seem to go deaf after the minimum period is announced, and I’ve often seen articles written which only contain the minimum period. The fact is, a lot of people do not get granted their parole at the end of the non-parole period. And many people aren’t released until they have served all of their sentence. I’ve imposed an effective sentence of 16 years imprisonment with 12 years non-parole. I was rather hoping, if there be any headlines, they not say 12 years imprisonment because it’s important that it is a 16 year sentence. The offender is doing well in the prison system in trying to be productive, but it will be the parole authority’s decision in ten years time. So that ends my pep talk for the media.”^[7]

72. With due deference to an experienced Judge, this was no part of the judicial function.
73. R v Moore (NSWCCA 12 April 1994, unreported) was a case of serious sexual offending against young girls. The sentencing Judge used strong language to condemn the offender and to emphasise the seriousness of the offending and the need to protect the community. This Court allowed an appeal against sentence. Blanch J said:

“Although it is clear the courts must protect young girls between the ages of 10 and 14, as this victim was, from the depredations of persons such as the applicant, the relevant question is what term of imprisonment is the appropriate one.”

74. That passage was a gentle reminder by the former Chief Judge of the District Court of the need for sentencing Judges to maintain an unemotional approach to the sentencing exercise, even in the most serious of cases.
75. The applicant submitted that the result in the present case was that the judgment on sentence was unbalanced and focussed almost exclusively on the objective seriousness of the offences so that the personal circumstances of the applicant were essentially disregarded. I accept that submission and would uphold ground 1.
76. The applicant’s employment record, his complete lack of criminal offending before the age of 40, his long estrangement from his father, the ill-health of a close relative, his good behaviour in custody, his work in surf life saving, to detail just a few of the personal circumstances adduced in evidence: all of these things were entitled to be taken into account and receive some weight in the complex sentencing process. If they received any consideration, taking into account the 25% discount for the early plea, it is difficult to imagine how a starting point exceeding two decades was in contemplation.

Ground Two

That the aggregate sentence imposed upon the applicant was manifestly excessive as to both the total sentence and the non-parole period.

77. Having decided that ground one must be upheld, it is necessary to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. It is not strictly necessary to determine whether the aggregate sentence and non-parole period was manifestly excessive. However, I would record my conclusion that it is.
78. In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 the Court said at [59]:

“As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’...”
(Footnotes omitted.)

79. Comparison with other cases and reference to statistics will rarely, without more, justify a finding that a sentence is “manifestly excessive” or “manifestly inadequate”. What must be considered is whether the sentence is “plainly unjust” or “manifestly wrong”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ). In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672; [1999] HCA 29, the High Court emphasised that:

"[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.”

80. The High Court has also observed that the consistency that is sought between sentences is the consistency in the application of relevant legal principles. In Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2 at [40]- [41], the Court said:

“The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect...”
(Footnotes omitted.)

Comparative Cases

81. While acknowledging the limitations on the process, the parties analysed a number of comparable judgments. None had precisely the same features as the present case. This was a grave example of fraud, committed over an extended period, with devastating consequences for the individual victims. The factual findings of the sentencing Judge were not challenged on the appeal and, subject to the use of pejorative expressions, were based on the agreed facts.
82. Fraud offences committed before 2010 were dealt with under the statutory predecessors to s 192E(1)(b) of the Crimes Act, namely ss 178BA, 178C, 178A, 184 and 176A. The maximum penalties for those offences were five years, one year, seven years, seven years and 10 years respectively. The maximum penalty for the substantive offences for which the applicant was sentenced is 10 years (s 192E(1)(b)) and the maximum penalty for the proceeds offence is 15 years. The cases referred to by the parties must be considered by reference to the different maximum penalties as well as the many other features that distinguish each individual offender and their offences.

Cases referred to by the applicant

R v Dimitri De Angelis [2013] NSWDC 79

83. Mr De Angelis pleaded guilty to 14 counts of cheat and defraud as a director contrary to s 176A of the Crimes Act (repealed) and two counts of dishonestly obtain money by deception contrary to s 178BA of the Crimes Act (repealed). A further s 176A offence was taken into account on a Form 1. The offender was the sole director of a company that was purportedly in the business of promoting musicians and producing and distributing music. In fact, the company had no real business dealings. The offender defrauded 16 victims over four years. He induced the victims to invest in the company through false and extravagant representations about his financial and social standing with significant world figures including Her Majesty Queen Elizabeth II, Pope John Paul II, the Dalai Lama, George Bush, Bill Clinton, John Howard and Kevin Rudd. A total amount of over $8 million was defrauded. Cogswell SC DCJ found (at [16]) that “inveigling himself into other people's lives is a feature of the way that Mr De Angelis went about committing these crimes”. His Honour took into account the offender’s abusive childhood, history of cocaine use and diagnosis of narcissistic personality disorder by his psychiatrist. Following the application of a 12.5% discount for a guilty plea, the offender was sentenced to an aggregate term of 12 years imprisonment with a non-parole period of 7 years and 6 months. An appeal to the Court of Criminal Appeal was dismissed: De Angelis v R [2015] NSWCCA 197.

R v Clarke [2019] NSWDC 2

84. Mr Clarke pleaded guilty to six counts of fraud contrary to s 192E(1)(b) of the Crimes Act. Mr Clarke was employed as a solicitor at Atanaskovic Hartnell Lawyers (“AH”) the time of his offending. Over a period of 1 year and 8 months he fraudulently transferred over $9.7 million to his personal bank account, which he purported to be the trust account of AH. The money was obtained from business bank accounts of entities associated with Bruce Gordon, which Clarke acted for in his capacity as a solicitor. The proceeds were dissipated through gambling. Williams SC DCJ applied a 25% discount for the utilitarian value of Mr Clarke’s guilty pleas and 15% for his assistance to authorities. Mr Clarke received an aggregate sentence of 6 years with a non-parole period of 3 years.

R v Kennedy [2019] NSWDC 359

85. Mr Kennedy, an accountant, pleaded guilty to six counts of fraud contrary to s 192E(1)(b) of the Crimes Act and two counts contrary to the statutory predecessor, 178BA of the Crimes Act (repealed). A further s 192E(1)(b) offence was taken into account on a Form 1. Mr Kennedy induced five clients to provide large sums of money by falsely representing to them that he would invest their funds at an attractive interest rate. Weber SC DCJ found that the offender abused a position of trust and authority and that the individual victims were vulnerable. The offending occurred between November 2007 and June 2015. On a separate indictment, Mr Kennedy was charged with offences in relation to his conduct whilst engaged as an accountant for a furniture company. In the course of his retainer, Mr Kennedy falsified payment slips attached to investment activity statements and business activity statements so that the EFT code for his personal bank account was listed instead of the bank account of the Australian Taxation Office. A sum of $1.4 million was diverted to his personal accounts through this method. The total sum defrauded by Mr Kennedy was over $4.6 million. Mr Kennedy had previous convictions and had been imprisoned for similar offences. The sentencing Judge afforded a 15% discount for the late pleas of guilty. Mr Kennedy was sentenced to an aggregate term of imprisonment of 7 years, with a non-parole period of 5 years and 3 months.

R v Albert [2019] NSWDC 869

86. Mr Albert pleaded guilty to 32 counts of fraud contrary to s 192E(1)(b) of the Crimes Act involving 32 victims. The offences were committed between September 2011 and April 2016 through four separate “sham businesses”. The offender’s modus operandi was to set up, what appeared to be, fully functioning businesses and induce members of the public to invest in them. Mr Albert registered these businesses using false names, employed staff, produced comprehensive marketing material and leased office spaces to make them appear legitimate. The sums of money invested ranged from $46,000 to over $400,000 totalling in excess of $4.3 million. The victims were individuals hoping to establish small businesses. Some lost their superannuation, while others lost their life savings and were forced to sell their family homes. At the time of the offending, Mr Albert was on bail for earlier fraud offences committed in New Zealand. There was limited evidence of an addiction to gambling, alcohol and other drugs. Bourke SC DCJ afforded Mr Albert a 25% discount for his pleas of guilty. An aggregate sentence of 10 years imprisonment with a non-parole period of 6 years and 9 months was imposed.

Decision Restricted [2019] NSWSC 1109

87. The judgment in this case is presently suppressed and it is inappropriate to refer to its details in this judgment. However, I have considered its facts and circumstances, and the sentence imposed, in considering the appropriate sentence in the present case.

Siwek v R [2017] NSWCCA 178

88. Mr Siwek worked as an accounting manager with a multi-national corporation based in America which banked with an Australian bank. He was entrusted with the task of sending electronic funds transfers. He had a drinking problem and a gambling addiction. Over a period of eight to nine years, Mr Siwek diverted a total of $1.7 million from the company account to his personal account. He repaid $450,000 pursuant to a civil settlement. Mr Siwek pleaded guilty to four offences of obtain money by deception contrary to s 178BA of the Crimes Act (repealed) and five offences of fraud contrary to s 192E(1)(b). A further three offences of fraud were taken into account on a Form 1. Mr Siwek was sentenced to an aggregate term of 6 years with a non-parole period of 3 years and 8 months. The appeal was dismissed.

Pereira v R [2018] NSWCCA 171

89. Mr Pereira pleaded guilty to three counts of corruptly receive benefit contrary to s 249B(1) of the Crimes Act, one count of obtain money by deception contrary to s 178BA(1) (repealed) and one count of knowingly deal with proceeds of crime contrary to s 193B(1). An offence contrary to s 192E(1) of the Crimes Act was taken into account on a Form 1. As a senior executive at Coca-Cola Amatil, Mr Pereira defrauded his employer of approximately $3.2 million over an 11-year period. Mr Pereira was sentenced by Williams SC DCJ to an aggregate term of 6 years imprisonment with a non-parole period of 4 years. The appeal was dismissed by the Court of Criminal Appeal.

Johnston v R [2017] NSWCCA 53

90. Mr Johnston pleaded guilty to one count of fraud contrary to s 192E(1)(b) of the Crimes Act. As senior accountant of a mining company, Mr Johnston prepared 156 false invoices over three years. The invoices, totalling $1.25 million, were paid by the company and transferred into accounts controlled by Mr Johnston. The funds were squandered on gambling. Mr Johnston reached a settlement with his former employer of $250,000 in consideration for release from further liability. Prior to sentencing, he undertook a rehabilitation program to address his gambling addiction. After allowing for a 25% discount, Williams AJ imposed a total term of 6 years and 6 months imprisonment with a non-parole period of 4 years. The appeal was dismissed by the Court of Criminal Appeal.

Gaffney v R [2009] NSWCCA 160

91. Mr Gaffney pleaded guilty to eight offences of obtaining financial benefit by deception contrary to s 178BA of the Crimes Act (repealed). A further eight offences of making and using a false instrument were taken into account on a Form 1. Whilst a senior bank officer at Westpac, Mr Gaffney defrauded his employer of $3.7 million over a period of 23 months. Most of the proceeds were gambled away on horse racing. An appeal to the Court of Criminal Appeal was upheld and Mr Gaffney was resentenced to an effective sentence of 6 years with a non-parole period of 5 years. The sentence was discounted by 25% for his early pleas of guilty.

Stroud v R [2019] NSWCCA 249

92. Mr Stroud pleaded guilty to 57 counts of fraud contrary to s 192E(1)(b) of the Act, a further 32 fraud related offences and two charges of possessing an unauthorised firearm, contrary to s 7A(1) of the Firearms Act 1996 (NSW). Mr Stroud was “an enthusiastic member” of a syndicate engaged in large scale Host Card Emulation (“HCE”) fraud. This involved a mobile ‘phone being fraudulently linked to a credit card and the phone being used for “tap and go” purchases. The offences took place over 13 months. The total amount defrauded was over $2.6 million and there were approximately 100 victims. Mr Stroud had a drug addiction and a record including offences of violence and burglaries. After a 25% discount, Frearson SC DCJ imposed an aggregate sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months. The appeal to the Court of Criminal Appeal was dismissed.

Other cases of fraud and similar conduct

93. I have also considered a number of other cases involving serious fraudulent offending.

R v Burke [2002] NSWCCA 353

94. Mr Burke pleaded guilty to 39 charges of obtain money by deception under s 178BA of the Crimes Act (repealed) and 11 charges under s 300(2). The offences committed over a six-year period and were found to be a “gross breach of trust” by the sentencing Judge. During the period spanning the charges, Mr Burke operated as an investment adviser and insurance broker through a company. The charges arose out of dealings with 26 of his investment clients, many of whom were elderly or retired. Money entrusted to Mr Burke was never invested, or was invested and later withdrawn without authorisation, and diverted to his personal account. The total amount defrauded was over $5 million. Mr Burke had previous convictions of dishonesty. After a 20% discount for his plea of guilty, Ducker DCJ sentenced the applicant separately on each of the charges to produce an overall term of imprisonment of 10 years with an effective non-parole period of 7 years and 6 months. The appeal to the Court of Criminal Appeal was dismissed.

Whyte v R [2019] NSWCCA 218

95. Ms Whyte was convicted after a jury trial of 18 counts of fraud contrary to s 192E(1)(b) of the Crimes Act and 9 counts of the statutory predecessor s 178BA(1) (repealed). The sentencing Judge imposed an aggregate term of imprisonment of 11 years with a non-parole period of 6 years and 6 months. Ms Whyte was a trusted bookkeeper and financial manager of a family business controlled by the Jenkins. She had a close relationship with the Jenkins. Using her position, Ms Whyte instructed customers to make payments totalling $2.9 million to her personal account, instead of the company account for over 7 years. On appeal, it was found that the trial Judge had erred in finding that motivation of financial gain was an aggravating factor and it was therefore necessary to resentence by reason of that error. Ms Whyte was resentenced to an aggregate term of 10 years with a non-parole period of 6 years and 6 months.

McKittrick v R [2014] NSWCCA 128

96. Ms McKittrick pleaded guilty to four counts of obtain a financial advantage by deception contrary to s 178BA of the Crimes Act (repealed). She asked that ten other 178BA offences be taken into account on a Form 1. Ms McKittrick operated a Ponzi scheme in Newcastle over a period of 2 years. This involved inducing 14 victims (counting couples as single victims) to invest large amounts of cash where returns were paid back to investors from their own investments or the investments of others. Near the end of the scheme Ms McKittrick told investors that she could not pay back their money due to health-related problems and because her house had been robbed of $500,000. The total loss exceeded $1 million. Maiden DCJ sentenced Ms McKittrick to a term of imprisonment totalling 6 years and 6 months with a non-parole period of 5 years. Whilst committing these offences, she was on bail for conducting an earlier Ponzi scheme in Coffs Harbour where she defrauded investors of over $6 million. The total effective sentence imposed for both the Coffs Harbour offences and the Newcastle offences was 9 years and 6 months with a non-parole period of 8 years. However, the non-parole period was reduced to 7 years on appeal due to considerations of totality and the statutory ratio of 75%.

Conclusion on Ground Two

97. The aggregate sentence imposed on the applicant was substantially out of proportion with other sentences imposed in serious cases involving fraudulent conduct charged under the same or similar sections of the Crimes Act. While that, of itself, does not establish that it is plainly wrong or unjust, I am comfortably satisfied that the sentence imposed in this case was manifestly excessive. The applicant’s lack of previous convictions before the age of 40, his family circumstances, his employment history and his work in surf lifesaving and search and rescue on the ski-fields in Canada was entitled to some weight. Even so, the grave circumstances of the offending was bound to result in a substantial period of imprisonment. However, when the early plea of guilty is taken into account, the aggregate sentence was plainly wrong. It may be that the matters raised under ground 1 were the underlying cause of the manifest excess in the sentencing outcome. In any event, the aggregate sentence was too long and the outcome was unjust.

Re-sentencing

98. The sentencing Judge assessed each individual fraud offence as falling generally in the “very broad mid-range” of objective seriousness. He said “some are at the top of [that] range, some are at the lower end of that range”. That conclusion was open on the evidence and I agree with it. For each of those offences, his Honour indicated a putative individual (“indicative”) sentence ranging between 18 months and 6 years and 9 months. The distinguishing feature was the amount of money involved. For example, sequence 43 involved a loss to the victims of $33,270 and his Honour indicated a sentence of 18 months while sequence 48 involved a fraud of $850,000 and his Honour pronounced an indicative sentence of s6 years. Sequence 46 involved a financial advantage of $1 million and the sentencing Judge announced an indicative sentence of 6 years and 9 months.
99. I would not interfere with the individual indicative sentences nominated by the sentencing Judge. Nor would I interfere with the sentence imposed for the proceeds of crime offence which was 7 years and 6 months and, appropriately, wholly concurrent with the aggregate sentence for the deception offences.
100. The aggregate sentence failed properly to apply the principle of totality with the result that the sentence can appropriately be described as crushing.^[8] In saying that, I appreciate that in settling upon an aggregate sentence the degree of accumulation and concurrence is somewhat academic or notional.^[9] Even so, the principle of totality remains critical to the outcome and the ultimate question is whether the aggregate sentence imposed was outside of a permissible discretionary range.^[10] I have not lost sight of the seriousness of the offending, the impact on the individual victims, and the repetitive, calculated and sophisticated nature of the offending. I have adopted his Honour’s adverse findings as to the applicant’s lack of genuine contrition and the guarded assessment of his prospects of rehabilitation. I have been influenced by the ambivalent opinions expressed by the psychologist and psychiatrist. However, I have given the applicant’s previous lack of criminal convictions some weight and have taken into account his individual personal circumstances.
101. I would not interfere with the 25% discount for the plea of guilty which was applied to the indicative sentences. I do not disagree with the sentencing Judge’s rejection of the submission that there were special circumstances justifying a reduction of the non-parole period.
102. In all of the circumstances, I would impose an aggregate sentence of 12 years with a non-parole period of 9 years.

ORDERS

103. For those reasons, I would make the following orders:

(1) Leave to appeal granted.

(2) Appeal against sentence allowed.

(3) Quash the sentences imposed by the District Court in relation to the (17) offences of obtaining a financial advantage by deception and in lieu thereof:

The applicant is sentenced to an aggregate term of imprisonment of 12 years commencing on 11 July 2017 and expiring on 10 July 2029 with an aggregate non-parole period of 9 years. The applicant will first become eligible for release on parole on 10 July 2026.

Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, confirm the following indicative sentences for the individual offences:

(i) Sequence 1: 4 years, 6 months.

(ii) Sequence 10: 4 years.

(iii) Sequence 11: 4 years.

(iv) Sequence 22: 3 years, 9 months.

(v) Sequence 23: 4 years.

(vi) Sequence 32: 6 years.

(vii) Sequence 38: 4 years.

(viii) Sequence 43: 1 year, 6 months.

(ix) Sequence 44: 4 years, 6 months.

(x) Sequence 46: 6 years, 9 months.

(xi) Sequence 47: 3 years, 9 months.

(xii) Sequence 48: 6 years.

(xiii) Sequence 51: 6 years.

(xiv) Sequence 57: 2 years.

(xv) Sequence 73: 2 years, 3 months.

(xvi) Sequence 74: 5 years.

(xvii) Sequence 76: 4 years.

(4) For the offence of dealing with proceeds of crime, confirm the concurrent fixed term of 7 years and 6 months commencing on 11 July 2017 and expiring on 10 January 2025.

**********

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^[1] A ‘Ponzi scheme’ is a fraudulent investing scam promising high rates of return with little risk to investors. A Ponzi scheme generates returns for early investors by acquiring new investors. This is similar to a pyramid scheme in that both are based on using new investors' funds to pay the earlier backers.
^[2] David Cahill was not specifically mentioned as a “victim” in the agreed facts or remarks on sentence. However, he was listed as a victim in a document entitled ‘List of victims in the matter of Hamish McLaren’ whereas Tina Danyi was not.
^[3] Presumably, and based on a search of the internet, Chronic Obstructive Pulmonary Disease (COPD).
^[4] See, for example, PG v R [2017] NSWCCA 179 at [74]- [94]; [2017] NSWCCA 179; (2017) 268 A Crim R 61, Berryman v R [2017] NSWCCA 297 at [29]- [34] and Ibbotson (a pseudonym) v R [2020] NSWCCA 92.
^[5] Tcpt, 17 June 2020, p 5.
^[6] See Strbak v The Queen [2020] HCA 10; (2020) 280 A Crim R 285 at [31].
^[7] ROS 53.
^[8] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 304 (Dawson and Gaudron JJ), 308 (McHugh J) citing and 340-341 (Kirby J) citing variously R v Rossi Unreported, Court of Criminal Appeal of South Australia, 20 April 1988 (King CJ), Thomas, Principles of Sentencing, 2nd ed (1979) at 57-58; Ruby, Sentencing, 4th ed (1994) at 44-45, R v M (CA) (1996) 105 CCC (3d) 327 at 346; [1997] HCA 26.
^[9] R v Nykolyn [2012] NSWCCA 219 at [56] – [58].
^[10] Ibid and see, for example, SHR v R [2014] NSWCCA 94; (2014) 241 A Crim R 544 at [42].