Fineff v R [2024] NSWCCA 102 | Case summary

Background

The following draws on the reasons of the sentencing judge. In 2010, the applicant commenced working with Sentinel Management Pty Ltd, a financial planning and investment business, becoming a financial planner in around 2013. The owner and managing director of Sentinel was Mr Justin Hooper. By 2019 the applicant was earning $160,000 per annum, plus bonuses of around $15,000, and managed around 120 clients. He had also acquired a minority financial stake in his employer, doing so with vendor finance.
Financial planners at Sentinel were only authorised to provide advice in relation to a limited number of investments. These did not include individual share purchases. Between October 2016 and March 2020, the applicant obtained personal loans from the 12 victims ostensibly for the purpose of acquiring shares in Sentinel or two unlisted public companies, Surf Lakes Holdings Ltd and QBiotics Group Ltd. Those dealings were outside the scope of his role at Sentinel. His clients lent him money because he was their financial advisor and they trusted him to act in their best interests. Eleven of the 12 victims were told, falsely, that he needed the funds to purchase shares in Sentinel. Some of the clients were told that they should lend him money so that he could purchase shares in QBiotics, and in one case, Surf Lakes Holdings. The applicant offered interest rates of between 3% and 7% per annum, save that in the last 6 months of the offending the loans had higher interest rates, of up to 30% per annum. The clients lent him money, but he did not use it to purchase shares. He gambled it away.
Paragraphs 18-205 of the District Court decision describe in considerable detail the offending, including consideration of the events giving rise to each of the 12 charges. By way of example, and because the offending relating to Ms Beevor was most prominent in the parties' submissions in this Court, it is convenient to reproduce [95]-[105] of the sentencing judge's reasons, which deal with sequence 7: Sequence 7 - DOREEN BEEVOR 95. The victim Doreen Beevor was 84 years old in 2020. 96. In around 2004, the victim and her late husband engaged Sentinel to manage their finances. In 2006, the victim's husband suffered a stroke and she became his carer and Power of Attorney. She was the sole contact for dealings with Sentinel. In 2013 the offender called the victim and introduced himself as her new financial advisor. The victim's relationship with Sentinel continued. In 2013 the offender assisted the victim when she placed her husband into a nursing home. He dealt with all the paperwork regarding his admission into the home. 97. Between 1 May 2018 and 13 August 2019, the offender dishonestly obtained $355,000 from the victim in three separate loans. The offender told the victim the purpose of the loans was to invest the money and purchase shares. He did not invest or use the funds to purchase shares. 98. On 2 May 2018, the victim signed a loan agreement with no specific permitted purpose for a personal loan to the offender. She agreed to lend him $95,000 to be repaid on 30 January 2021. The interest rate was 4.5% p.a. payable by 30 June each year. 99. On 16 June 2018, the victim provided a cheque for $95,000 to the offender. He cashed it and received the funds on 18 June 2018. 100. On 6 July 2018, the victim signed a second loan agreement for a personal loan to the offender. She agreed to lend him $150,000. The loan was to be repaid on 30 June 2021. The interest rate was 5.5% p.a. payable by 30 June each year. The unpaid interest rate was 15% p.a. The loan was to continue with the victim's daughter acting as the lender in the event she died. On the same day, the victim provided the offender with a cheque for $150,000. 101. On 11 August 2019, the victim signed a third loan agreement for a personal loan to the offender. She agreed to lend him a further amount of $110,000 to be repaid by 11 August 2020. The interest rate was 7% p.a, with 15% p.a. to apply on outstanding amounts. On the same day, the victim provided a cheque for $110,000 to the offender which he deposited into his bank account on the following day. 102. On 24 March 2020, the victim received a phone call from Justin Hooper. Mr Hooper advised her that she had invested personally with the offender and that he had lost all her money gambling. 103. On 10 April 2020, the victim reported the fraud to police. On 29 April 2020, she provided police with a statement. 104. On 11 April 2020, the victim received an Express Post Letter from Wesley Mission. Inside was a two-page letter from the offender. The letter was dated 9 April 2020. In it the offender apologised and said he had gambled her money away. 105. On each occasion the victim had contact with the offender she understood she was dealing with her financial advisor.
Paragraphs 206-215 of the sentencing judge's reasons describe how, in February 2020, Sentinel became aware of the applicant's offending (by reason of an email from some of the applicant's clients (who were not victims)), following which, on 14 March 2020, Mr Hooper received an email attaching a five page handwritten letter in which the applicant admitted to having a gambling addiction, being in debt, and that he had borrowed money from family, friends and clients which he had lost. The applicant's employment was terminated on 20 March 2020. Sentinel then commissioned a forensic accountant who, on 10 July 2020, reported that the applicant's relationships with the clients came about through his role as a financial planner at Sentinel where he was responsible for providing financial advice to them, that his personal relationships with clients were "maintained quite separately from his professional relationship[s]", and that the applicant had advised that he had a gambling addiction and had lost all the funds borrowed from the clients.
On 7 May 2021, the applicant attended Chatswood Police Station and was arrested. He participated in an electronically recorded interview, which was approximately 5.5 hours in length, and provided police with a 42 page written statement. The sentencing judge summarised the police interview as follows: (a) He made clear to the clients that the dealings would be outside his role as a financial planner at Sentinel. He told clients he was dealing with them in his personal capacity. He never saw the dealings as part of Sentinel because he never did anything during business hours in relation to these dealings and always kept them separate from his work at Sentinel including phone calls and emails. (b) He followed the Sentinel "Record of Advice" process where applicable. (c) He used a personal mobile phone in all conversations with the clients. (d) He acknowledged receiving money dishonestly from each of the twelve victims. (e) He repaid the money borrowed from one client in full. (f) All communications were conducted from his personal email account, not the Sentinel email account.
Police had made enquiries into the applicant's gambling, which revealed that: 1. between June 2018 and March 2020, he had deposited $2,208,525 with Ladbrokes and withdrew $1,450,015, resulting in a loss of $758,510; 2. between June 2014 and October 2018, he had deposited $6,013,744 with Sportsbet or Beteasy, and withdrawn $2,353,900.92, resulting in a loss of $3,659,843.08, and 3. Police were unable to obtain records from Tabcorp where he had also been a client for some 9 years until June 2018. He was also a customer of Betfair from March 2010 to May 2020.
The sentencing judge observed that the objective seriousness of fraud offences turned upon the amount of money involved, whether actual loss was occasioned, the length of time over which the offending occurred, the motive, the degree of planning and sophistication, and whether there was any accompanying breach of trust: at [227]. His Honour stressed the importance of general deterrence, because of the difficulty in detecting offending of this type, and that the sentence "must send a clear warning to others who may be tempted to act as the offender did, that if they are detected, and come before the courts, then they can expect to serve meaningful custodial sentences": at [229]. His Honour noted that the applicant's offending involved a grave breach of trust, which could only be committed because of the close personal relationship which existed between him and his victims. The period of time over which the offending occurred varied between one year and seven months in the cases of Joyce Williams and Joan Richards, and eight days in the case of Julia Van der Veer, but his Honour stated that "[i]t was not isolated or impulsive" but rather "the offending was well-planned, deliberate and sophisticated, involving repeated communications with the victim's both at the time their funds were advanced, and later as the offender sought to reassure them in respect of those investments": at [231]. His Honour noted that the applicant had "repeatedly engaged in the preparation of false and/or misleading documents to give apparent legitimacy to his criminal behaviour", and then noted at [232]: The offender was engaged in his employment to manage the investments of his clients and to provide them with advice with a view to maximising their funds. Rather than doing so, he embarked on a sophisticated and long running course of conduct which mismanaged their funds to feed his personal needs, and in doing so significantly diminished their resources. He acted for some of his victims for many years. It is implicit in the relationship between a client and his financial advisor that the advisor will always act with the utmost integrity and probity. In committing these brazen crimes, the offender completely abrogated this responsibility. His breach of trust is, by virtue of the common law, and its statutory equivalent in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act, a significant aggravating feature in each sequence.
Another matter which was regarded as important to the assessment of objective seriousness was the age and characteristics of many of the applicant's victims. The sentencing judge said at [233]: There is another factor which is important in my assessment of objective seriousness of some of the offending, and which intersects with the offender's breach of trust. Joyce Williams, Doreen Beevor and Joan Richards were all elderly women in their early 80s. Barry Smith, Roger Gribble and Kathleen Powell were aged in their 70s. Meaning no disrespect, these victims were of an age and generation where someone like the offender, would be seen as an impressive young professional they could rely on. This in circumstances where no doubt they had all worked hard throughout their lives to adequately provide for retirement and their family. The level of trust bestowed on the offender was high as was his breach of that trust. The age of these victims (save for Ms Williams, who in October 2021 sadly passed away in very difficult financial circumstances that were caused by the offender) means that it is virtually impossible to envisage them ever recovering the loss they sustained. Their hopes and dreams for the latter part of their lives were seriously impacted by the offender, and these outcomes were foreseeable and indeed predictable. I will return to the issue concerning the impact on the victims shortly.
His Honour was satisfied that the motive for the crimes was the applicant's addiction to gambling, but noted that generally speaking a gambling addiction was not regarded as a mitigating circumstance because it was merely the motive or explanation for the commission of the crime. To anticipate aspects of the applicant's subjective case, evidence of his personality disorder and complex post-traumatic stress disorder slightly moderated the applicant's moral culpability and made him a marginally less appropriate vehicle for general deterrence, but the sentencing judge regarded the applicant's gambling disorder as being in a different category, which did not ameliorate his moral culpability or the need for general deterrence: at [246].
The sentencing judge summarised the offending for each charge at [238] as follows: Sequence 1 - Joyce Williams: this offending occurred over a period of about nineteen months. It involved $325,000 and four loan agreements. In my view this offence falls slightly above the mid-range of objective seriousness for offences of this type. Sequence 2 - Eugene Mansour: this offending occurred over a period of just less than two months. It involved $90,000 and two loan agreements. In my view this offence falls below the mid-range but not at the bottom of the range of objective seriousness for offences of this type. Sequence 4 - Greg Gibbons: this offending occurred over a period of three days. It involved $60,000 and a single loan agreement. In my view this offence falls towards the lower end of the range of objective seriousness for offences of this type. Sequence 5 - Julia Van Der Veer: this offending occurred over a period of nine days. It involved $240,000 and two loan agreements. In my view this offence falls towards the mid-range of objective seriousness for offences of this type. Sequence 6 - Loretto Mardones: this offending occurred over a period of twenty days. It involved $100,000 and a single loan agreement. In my view this offence falls below the mid-range but not at the bottom of the range of objective seriousness for offences of this type. Sequence 7 - Doreen Beevor: this offending occurred over a period of approximately sixteen months. It involved $355,000 and three loan agreements. In my view this offence falls slightly above the mid-range of objective seriousness for offences of this type. Sequence 8 - Joan Richards: this offending occurred over a period of approximately nineteen months. It involved $300,000 and two loan agreements. In my view this offence falls at about the mid-range of objective seriousness for offences of this type. Sequence 9 - Barry Smith: this offending occurred over a period of almost 14 months. It involved $120,000 and two loan agreements. In my view this offence falls below the mid-range of objective seriousness for offences of this type. Sequence 11 - Roger Gribble: this offending occurred over a period of approximately nineteen months. It involved $405,000 and six loan agreements. In my view this offence falls just above the mid-range of objective seriousness for offences of this type. Sequence 13 - Phillip Heggie: this offending occurred over a period of two months. It involved $220,001.20 and two loan agreements. In my view this offence falls towards the mid-range of objective seriousness for offences of this type. Sequence 14 - Kathleen Powell: this offending occurred over a period of approximately 16 months. It involved $745,000 and eight loan agreements. In my view this offence falls well above the mid-range of objective seriousness for offences of this type. Sequence 16 - Lauren Fuller: this offending occurred over a period of approximately ten months. It involved $395,025 and nine loan agreements. In my view this offence falls above the mid-range of objective seriousness for offences of this type.
In a section headed "The impact on the victims", the sentencing judge gave the following nuanced summary at [240]-[241] of the victims' statements received at the sentencing hearing: All these people, along with those victims who did not prepare a purported "Victim Impact Statement", have suffered considerably because of the offender's criminal behaviour. The statement of Sharon Williams was especially powerful, referring as it does to her late mother's hard work and long struggle to live independently, only to have the offender strip her of her life savings such that she lived the final part of her life in difficult financial circumstances. The other victim impact statements speak variously of the stress, anxiety, embarrassment, betrayal, and loss of security felt by the authors, and the ongoing nature of the harm sustained by them. I have earlier referred in dealing with the objective seriousness of the offending, to the age of several of the victims and their inability to recoup the losses they suffered at the hands of the offender. This impacts upon the harm these victims have suffered. I accept without hesitation that the offender's criminal conduct has had a serious impact upon all the victims and that such impact was entirely foreseeable and indeed predictable. The offender is responsible for all the various harms that have been caused to them. In respect of those victims where I have received what are described as "Victim Impact Statements", I am satisfied beyond reasonable doubt that those prepared by Sharon Williams, Doreen Beevor, Roger Gribble and Kathleen Powell support a finding that the emotional harm and financial loss caused is beyond what one would ordinarily expect in cases of this type and "substantial" within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, and accordingly a statutory aggravating factor. In the matters of Greg Gibbons and Julia Van Der Veer, and those where no statements from the victim have been received, I am satisfied the emotional harm and loss visited upon those victims is of a type one ordinarily expects in cases such as this and so not a statutory aggravating factor. In making this finding in respect of those victims, I do not intend to diminish the harm and emotional pain experienced by them. The serious effect upon all of them will be considered by me as part of the overall instinctive synthesis. In doing so I am mindful the law provides that the attitude of a victim whether it be forgiveness or vengeance cannot be allowed to interfere with the proper exercise of the sentencing discretion: R v Palu [2002] NSWCCA 381 at [37].
The Court was taken to the statements summarised by the sentencing judge. Ms Williams was aged around 85 and later died, but her daughter described how her mother's standard of living was greatly reduced, and instead of a comfortable retirement, she had to leave her comfortable garden two bedroom apartment for a small one bedroom apartment which was dark and cold. She stopped cooking for herself as the oven was too low for her. She did not get to know her neighbours, and feared for her safety. Her daughter said that her mother had been brought up in a children's home, and had fought to make a presentable life, and yet "She ended where she started. Trusting no-one", concluding: She died, broken on 12 October 2021. Both my children and I are convinced that the fraud perpetrated on her that was allowed to go undiscovered for 2 long years, along with the breach of trust, was a major factor in her earlier than otherwise death. For me, the pain of my mother's demise through Gavin and Sentinel Wealth's actions have shattered me. My parents divorced in 1971 and we were left with nothing. How my mother who was so brave and strong, was reduced to such a low, deceitful, and tragic end is very hard to bear. Personally, I have sought professional help to keep me going.
The statement eloquently emphasises that there are far more victims of the applicant's frauds than the 12 clients whose money he stole. There is also unquestionably serious lingering emotional harm inflicted upon their families, and financial harm too upon those who have become obliged to support the applicant's former clients, and upon those who otherwise would be expected to benefit from the primary victims' estates after their death.
Ms Doreen Beevor's statement should be reproduced in its entirety. In part that is because of her concern that she feels as though she does not have a voice, and I wish to convey that I have read (and I believe the sentencing judge also read) every word of her statement. Further, it is difficult fairly to summarise all aspects of the statement, not least her under-stated tone and her acute awareness that her words cannot fully convey the impact of the offending. I am Doreen Beevor 87 years old. My contact with Gavin Fineff came about as he was employed by Sentinel Wealth as my financial adviser for almost ten years. The money Mr Fineff took and lost was worked for over a lifetime, by my late husband and myself. It was there for our lifetime and family's future. Sometime in your life you must make decisions to trust. My husband took the decision to trust Sentinel Wealth, with his guidance I agreed. My husband had a brain bleed not long after we signed the agreement. I cared for him for 12 years before he passed. Stan was in a nursing home when he died. It seemed natural to me to accept my financial advisers offer to take over the paperwork involved. Here is my story. I am not sure of exact timeline but approximately 3 years ago I received a phone call from Justin Hooper (Sentinel Wealth) that a major part of my finances had been gambled and lost by Mr Fineff. To add insult to injury Mr Hooper blamed me for the loss as Mr Fineff claimed I gave him money I had lying around (I saw this claim in Mr Fineff's police statement, so it is verified). I have never felt more alone and desolate coming on top of my husband's death. I have wondered why I bother and touched on thinking about not continuing. It is only with the support of my daughter Sandra and my granddaughter Amanda that I continued. I am a very private and proud person I would not consider going to a councillor or similar. Loss of sleep, nightmares and daymares, anxiety, stress, hopelessness plus are all feelings I have and of course writing this, with my daughter's assistance, brings all these feelings up again. Mr Fineff not only took my money he took my peace of mind, security and life choices. Disbelief, shock, anger, worry and fear for my future, shame that I had been so vulnerable, at the time of my husband's passing not to realise the deception. I had been living off funds which were no longer there for a long time and what was left had run down quickly before the discovery of Mr Fineff's actions. I was not aware of what had happened in full until an A.S.I.C. representative explained where and how I had been deceived. Anger that Mr Fineff was operating in a company that had not once asked me where my funds had gone. My lack of computer technology used against me. The lies by all involved to save themselves from consequences of their actions or lack of. The expectation, that perhaps I should have known what he was doing, when the company Sentinel Wealth and many other victims did not. Upset, stress, frustration and hurt that Mr Fineff continues to claim I gave him my money over the interests of myself and my family when it is totally against what I believe in (a lender nor a borrower be outside immediate family). The fact that Mr Fineff took advantage of my difficult circumstances and now my honesty is being questioned a continuing and devastating consequence for me from Mr Fineff's actions. Mr Fineff's subsequent appearances on mainstream and social media, claiming himself as a victim, have been devastating to myself and my family. As a victim of Mr Fineff, I can assure you that this was extremely upsetting to see. Seeking publicity at a time when many more were suffering rather than taking responsibility, (although saying he has) all this in the public domain was not for the benefit of anyone except Mr Fineff (public record). I am also aware of the section mentioning Mr Fineff in Hansard 5/09/2022, something that could have appeared to be his plan B. This could have been done quietly but again has been played out in public forgetting the real victims of gambling blaming the companies without addressing the dishonesty, deception and theft that goes with obtaining funds to fulfill a[n] individual's obsession, Of course, reform has its place but not on social and main media as an excuse for theft. My daughter and her husband (who has Parkinson's and cannot work) for financial reasons had to sell their property, they were based near where I lived. They could only afford to buy a property in country NSW, 7 hours' drive from me. If I had still had all my funds, I would have assisted them to stay close by or been able to buy a more suitable property close to where they moved. As it has turned out, I have had no choice, due to financial constraints caused by Mr Fineff's actions, age and ill health, to move into community rent complex accommodation in country NSW at least half hour drive from medical facilities. Unfortunately, this is not a climate that suits my health problems and has been a major upset in my twilight years, but it is what I can afford now to be with my family. How many years have I lost off my future? My daughter, Sandra, had to take over my dealings with finances, Centrelink, Sentinel Wealth, Police, AFCA and ASIC. Something I was not used to. This also has put strain on our relationship as I am more emotional and Sandra has the job of protecting me and navigat[ing] the legal requirements. I lost my self-confidence and could not and still cannot deal with most official matters. During this time, my daughter had 2 major operations. While recovering she had to learn to deal with matters beyond her circle of concern, solicitors with Sentinel Wealth fighting my attempt to get the return of my funds by Sentinel's insurance company through AFCA. As a result of Mr Fineff's dishonesty Antares (Sentinel Wealth's insurance company) are refusing to pay compensation, taking his word that I gave away my future. Sentinel Wealth is publicly commenting on the case, AFCA and myself. Even though AFCA has ruled in my favour twice, Sentinel Wealth, through their solicitor, are now threatening legal action against AFCA and myself. This is purely down to Mr Fineff's actions. I am now in a situation where "legally" I am being vilified in order to save Sentinel Wealth from their duty of care. Again, on public record and is a consequence of Mr Fineff's actions and behaviour. I don't feel I have a voice because of my age and less than adequate circumstances, loss of confidence and so on. Even this letter is subject to cut and slash if not considered suitable!! Legal action … by Sentinel Wealth's Solicitors Morris and Minnelli is a possibility in my future which now entails my daughter protecting me and dealing with whatever comes along. Sandra will be bearing the brunt of this as my representative and softening the blows for me. As a victim of Mr Fineff, it certainly does not stop with his sentencing. Mr Fineff stated, in his police statement, that he wished to sit down with me one day and have a conversation. I have tried to keep my new home address private and will be changing my phone number. I do not at any time wish to be contacted by Mr Fineff, this statement has made me concerned and afraid. I would ask the Police, Department of Public Prosecution and/or the court make sure there is some sort of condition in place to make sure Mr Fineff is legally stopped from making any contact with me. I have chosen not to "watch" the court sentencing of Mr Fineff. The technology involved and knowing the procedure will bring up a list of excuses for Mr Fineff's behaviour it is better for me to get on with my daily routine and hear the result after. My life has been damaged enough and health wise it is the most sensible decision for my family and myself. I cannot, in writing, really convey the impact that all this had had on me, I hope what I have written shows that this has been a major negative to me and my family. I have been made aware that legally bits and pieces may be removed. As we are not solicitors and do not have access to a solicitor, I send this in good faith believing that all I have said is true, correct and relevant.
As the fourth paragraph of Ms Beevor's statement makes plain, the materials assembled by the applicant in support of his rehabilitation were double-edged, especially his attempts to portray himself as a victim. Confronting this directly, the applicant's counsel submitted: That it is entirely understandable that that person should feel that way and the applicant should be sensitive about that and the Court would be sensitive about that, however, your Honours would also take care not to hold against the applicant the efforts that he has made towards gambling reform, including in assisting Mr Andrew Wilkie from whom he has a reference and his engagement with various other organisations, including the alliance for gambling reform, CEO, and this is at p 306 and 307, the CEO Carroll Bennett gave a letter supporting the applicant and stating on 307 that his, that is the applicant's commitment to reducing gambling harm in Australia is already having a real impact.
The sentencing judge said at [242] that: Tendered in the offender's case were letters of apology both to the victims and the court, a report of Dr Brian Gutkin consultant psychiatrist and psychotherapist dated 10 August 2022, a psychologist report of Prof Stephen Woods dated 16 January 2023, a series of news articles concerning the offender, and a series of character references all of which speak well of him. In addition, the offender gave evidence before me over some hours. I observed him carefully as he did so, and formed the view that he was candid, and generally doing his best to assist me. He also struck me as a person with insight into his predicament and an understanding and acceptance that he must be punished for his criminal behaviour.
The applicant was the oldest of three children from a dysfunctional family, where the father, apparently an accomplished rugby league player, abused alcohol and perpetrated numerous episodes of violence upon his mother. Dr Gutkin's report refers to the applicant's witnessing his father strangling his mother, such that the applicant believed she would die, and opined that he suffers from complex post-traumatic stress disorder because of his childhood experiences. The father also introduced his son, when aged around 12 or 13, to gambling on race horses. Professor Stephen Woods also diagnosed the applicant as suffering from a personality disorder with mixed features, but predominantly narcissistic, avoidant and borderline types, as well as a persistent and severe gambling disorder that is now in sustained remission.
The sentencing judge was of the view that none of the mental conditions was causally connected with the offending, but had regard to both those conditions (but not the gambling disorder) and also the level of disadvantage and dysfunctionality in his home as part of the instinctive synthesis.
After an attempt at a career in rugby league, injury led the applicant to working in a credit union and obtaining a diploma in financial management. He met his wife in 2004 and there are two children of the marriage. The sentencing judge recorded at [250] that: Her ongoing support of him is a very positive feature of his subjective case. Unsurprisingly, and entirely because of his own conduct, his absence from his wife and children is a cause of ongoing difficulty for both him and them.
The original deposit for the applicant's share in Sentinel was borrowed from his mother. The sentencing judge said at [252]: To acquire his initial share in Sentinel the offender borrowed the sum of $90,000 from his mother. His evidence revealed this amount was insufficient to complete the proposed acquisition. He then decided to gamble the money his mother had advanced him in the expectation he would win a sufficient sum to finalise the transaction. As with many gamblers before him, his expectation was not realised, and he lost the money. I am satisfied his decision to gamble the substantial sum given to him by his mother and his subsequent "chasing" of those funds was the start of his slide into the serious criminal conduct which brings him before the court today. It saw the unravelling of what would likely have been a promising and prosperous future. This unravelling included him being declared bankrupt, the loss of his career and most significantly, the inevitability of a lengthy custodial sentence.
The sentencing judge referred to the enormous sums gambled away by the applicant, noting that there did "not appear to have been any attempt by these betting agencies to verify the source of the funds he was wagering with them". His Honour said at [253]: The offender reported to Prof Woods that when his Tabcorp account was closed in 2018 he was approached within a week by an employee of Ladbrokes who offered to open an account for him in a fictitious name, and to give him a credit facility of between $10,000 to $20,000 to be used for gambling. The exact amount is not clear. In any event the offender quickly lost the money. He also told Prof Woods that about two months later he was contacted by a representative of Beteasy, a company which later became known as Sportsbet. That representative offered to provide credit of $50,000 into an account with the company to enable the offender to gamble. He is reported to have lost that money within 40 minutes, and on the following day a further $50,000 was credited into his account which he again lost within a short period.
His Honour added at [254]: The offender told Prof Woods that in the relevant period, which I have taken to be both prior to and during the period of his offending, he received a total of $3.1 million in incentives from Ladbrokes and Sportsbet. In an article published in the Sydney Morning Herald on 25 October 2020, a copy of which formed part of the material before me, the offender described these incentives as "like a drug dealer handing out free heroin to people." It is hard to argue with the accuracy of that analogy. While there is no doubt the responsibility for the offender's criminal behaviour lies squarely with him, one cannot ignore as a matter of context, that the companies with whom he gambled promoted an environment which provided him not only with the opportunity to do so, but actively encouraged him. To the extent this conduct of providing incentives to VIP customers is typical of the approach taken by gambling companies, then in my opinion, it warrants review, by both the industry itself, and those charged with the responsibility of regulating it.
This Court was told that some "preliminary steps" had been taken to consider whether the amounts could be recovered. It is inappropriate for this Court to offer any views on the strength or otherwise of a claim, but it is to be hoped that by now, more than four years after the offending came to light, some thought has been given to whether the gambling companies were aware of the applicant's occupation and salary, what steps if any were taken by those companies to guard against the possibility that the money provided to them and gambled away was money obtained in breach of fiduciary duty, and of the prospects of claims against them, including based on Barnes v Addy (1874) LR 9 Ch App 244. I mention this principally because, as was raised during the hearing, concrete evidence of the steps taken by the applicant to facilitate the recovery of funds to the 12 victims would be of much greater solace to them, and would unequivocally contribute to a favourable assessment of the applicant's rehabilitation, compared to the various public statements he has made criticising the conduct of gambling companies and urging reform of the regulatory regime to which they are subject.
None of the above should be taken to imply that the applicant's conduct has not produced any tangible benefits to his victims. To the applicant's credit, the sentencing judge recorded evidence from the applicant's trustee in bankruptcy as to the assistance he provided in recovering client funds, including that $448,174 had been recovered, with hope that more would be. The sentencing judge noted that the evidence revealed there would be a "significant shortfall" in the recovery of the total amount the applicant defrauded, but also that it was not the case that the applicant had simply walked away from his victims without any effort to reimburse them. His Honour added at [255]: These efforts, along with the evidence he gave and the letter he wrote to the victims which formed part of the material tendered in his case, are demonstrative of what I am satisfied is his genuine remorse and contrition. Notwithstanding these efforts, the reality is that the victims will all be substantially out of pocket because of the offender's criminal behaviour. His voluntary disclosure of offending to which I will shortly come, also supports my finding that he is genuinely remorseful.
The sentencing judge recorded that the applicant had no prior criminal convictions and was a person of otherwise good character, but noted that offending of this type was often committed by such persons, and that the 2nd to 12th offences were committed by a person who was not of good character, albeit that his offending had not at that time been discovered.
The timing is somewhat unusual. After his offending was revealed, the applicant presented to Wesley Mission, then was admitted to the psychiatric unit at Royal North Shore Hospital, and then to South Pacific Private Hospital where he remained for two months. For reasons that are not plain on the face of the materials provided to this Court, more than a year passed between the detection of his crimes in March 2020 and the applicant presenting himself to police in May 2021 whereupon he was charged, and more than a year thereafter passed prior to his being taken into custody in October 2022. To his credit, in the more than 2½ years between his offending being detected and his being taken into custody, the applicant took positive steps towards rehabilitation. He attended over 200 meetings of Gamblers Anonymous, received psychiatric treatment from Dr Gutkin once or twice a week for more than two years, completed a Life Choices Program at Oakdene House Foundation, attended conferences concerning gambling reform and made media appearances to acknowledge his wrongdoing and tell his story, and embraced Buddhism.
As noted above, the applicant also contributed to parliamentary debate and the development of legislation concerning gambling reform, making submissions to both the Australian and UK governments. The sentencing judge said at [259]: I accept he has applied himself diligently to important issues of gambling reform. While this is unlikely to provide any solace to his victims, it is an aspect of his subjective case which I must take into account. As to this, I have had regard to correspondence tendered in the offender's case, from Andrew Wilkie MP dated 6 December 2022. He speaks positively of the assistance provided by the offender in the development of laws aimed at reforming the gambling industry. I have also had regard to correspondence from the CEO of the Alliance for Gambling Reform, Ms Carol Bennett and Rev Tim Costello, a well-known advocate for gambling reform. Both Ms Bennett and Rev Costello refer to the willingness of the offender to take responsibility for his wrongdoing and the hurt he has caused to others and his preparedness to engage with them as a means of warning others of the risks which can, for certain members of the community, be associated with gambling. Rev Costello put it this way, "We at the Alliance for Gambling Reform are much advanced in offering a suite of better policies and public protections that may save many others thanks to Gavin's courage."
The sentencing judge found that the applicant had excellent prospects of rehabilitation, including based on his conduct.
The sentencing judge found that in addition to a 25% discount for his plea, the applicant was entitled to an additional 5% for his assistance to authorities, stating at [265] that his assistance was significant and useful in initially cooperating with Mr Hooper and Sentinel including by the preparation of a spreadsheet identifying all the loans he had obtained from Sentinel clients, then assisting the forensic accountant including by the provision of documents including loan agreements, bank statements, spreadsheets, and emails, preparing a 42 page statement setting out the details of his crimes and providing to police that statement and a USB stick containing material which assisted them in their investigation, including a spreadsheet detailing the funds he had dishonestly obtained from each of his victims, including particulars of the dates of loans and various account numbers.
The sentencing judge considered totality, and a number of comparable cases, many of which featured in the submissions in this Court, and which will be addressed below.
A sentence of 9 years with a non-parole period of 5 years and 4 months was imposed. A finding of special circumstances was made, based on the applicant's prospects of rehabilitation and his needs for post-release intervention to complete the gambling rehabilitation and ongoing assistance for his various mental health conditions. The sentencing judge accepted that the applicant was "committed both to abstinence from gambling and ongoing psychological counselling upon his release from custody, and overall, [I] am satisfied he has excellent prospects of rehabilitation": at [260].

Two classes of case?

The applicant contended that what emerged from that body of decisions were two broad classes of offending: 1. In the first category were cases of sustained offending, often by offenders with previous convictions, with little or no remorse, or who otherwise had a deficient subjective case for which sentences in the order of 10 years imprisonment were imposed. 2. In the second category were other cases where the offending was more broadly comparable to the present case, with favourable subjective cases, which resulted in sentences in the order of 6 years.
The applicant's submission was that he fell within the second category, and thus the comparable sentences confirmed that the sentence was manifestly excessive.
The applicant placed reliance upon R v Burke [2002] NSWCCA 353, where an aggregate sentence of 10 years with a non-parole period of 7½ years was imposed for 50 charges of fraudulent misappropriation, over a period of more than 6 years with more than 26 victims involving more than $5,000,000. The sentence incorporated a discount of 20% for the plea. The applicant emphasised that Mr Burke had a prior record involving dishonesty and showed no remorse, and that while the time period, amount of money taken and number of victims exceeded those in the present case, the sentence was comparable, especially when allowing for a 20% rather than a 30% discount.
In the second category of case, the applicant relied on R v Hopkins [2021] NSWDC 410, which involved 13 victims over a 3 year period with an amount of $2.94 million of which $2.74 million was unrecovered, by an offender who was a financial advisor who transferred client funds into his personal accounts without authority, and created false documents to facilitate the offending, who suffered from a chronic adjustment disorder and had an unwell daughter, and who used the funds for the maintenance of an extravagant lifestyle. Incorporating a 25% discount for the early plea, the sentence was 6 years imprisonment with a 4 year non-parole period.
The applicant submitted: The case of Hopkins is most similar in circumstances with the case of the applicant but the sentence is significantly less severe. There was some limited prior record that Mr Hopkins had which is a distinguishing factor in favour of my client but against that the quantum was somewhat less and the very large proportion of the money was not recovered. The maximum penalties because there was offending taking place over a period of time differed. It was ten years for some of the offences and for a limited number of the offences it was 15 years and-- LEEMING JA: Ten years for 13 of the offences, 15 years for two of the offences. WOODS: Yes, that is so, your Honour. That of course, it's perhaps a small matter, but it stands in my client's favour generally. And I rely, on the applicant's behalf, on the sentence imposed in that case as a proper indication of the range for cases in this category.
The applicant's submissions were advanced attractively and effectively, but I do not accept them.
First, it is trite that a ground of manifest excess is not made out simply by identifying particular cases which, so it is said, are difficult to reconcile with a sentence imposed. Burke is now more than two decades old, and 39 of the 50 charges were under s 178BA of the Crimes Act which imposed a maximum penalty of only 5 years imprisonment (the other 11 charges were under s 300(2), which carried a maximum term of 10 years imprisonment). The fact that the sentence imposed on the applicant is substantially heavier than that imposed in Hopkins does not of itself establish manifest excess. It may only show that Hopkins was an example of a lenient sentence.
Secondly, the 13 cases relied on by the parties as comparables is a small sample space for offending which varies widely, in the number of offences, the number of victims, the amount taken and the subjective cases of the offenders. I am unpersuaded that it discloses the two broad categories of case on which the applicant relied.
A much safer course is to identify sentences which were upheld by or imposed by this Court in circumstances which are broadly comparable to the present case. If there were a body of sentences which resembled Hopkins v R that would support the applicant's submission. But the opposite is true.
A more closely comparable decision is Nakhl v R (Cth) [2020] NSWCCA 201, which was an effective sentence of 10 years imprisonment with a non-parole period of 6 years, incorporating a 12% discount for guilty plea. There were eight counts of engaging in dishonest conduct in providing financial services contrary to s 1041G of the Corporations Act 2001 (Cth) which carried a maximum sentence of 10 years imprisonment, involving eight victims over a timeframe of around 4 years with an amount of some $6.7 million, of which $5.1 million was lost. Mr Nakhl ran a financial investment company and defrauded his clients of their money. A further four offences of the same kind were taken into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth), and those offences attracted a maximum penalty of 5 years imprisonment. The offender suffered from mild autism spectrum and OCD, together with narcissistic personality traits, and had suffered a background of bullying due to his race and Tourette syndrome.
The applicant emphasised that although there were fewer victims, more money was taken and there was no evidence of remorse. There was the following exchange: LEEMING JA: Just before you leave Nakhl, ten years with a six year non-parole period, more value in fraud, fewer victims, about the same time, also associated with financial investments, financial planning, why is the sentence your client received out of line with Nakhl? If you can encapsulate it? WOODS: It's out of line with the sentence received in Nakhl because in my submission the offending in Nakhl was at least as serious as my client's offending, but perhaps more importantly the subjective case was less strong and my client's subjective case was much stronger. That is not just confined to the different discounts of course because those discounts relate to "subjective matters", but also the unquantifiable considerations which are factored in or synthesised generally in the process of instinctive synthesis.
I do not accept all aspects of the applicant's response. The offending was not "at least as serious". Because of the way in which s 16BA of the Crimes Act 1914 was used, the effective sentence in Nakhl is the result of eight individual sentences, although four further less serious offences were also taken into account, whereas the applicant has been sentenced for 12 offences. Moreover, not only were there more victims defrauded by the applicant than in Nakhl, but by choosing elderly, vulnerable victims the applicant manifested a greater breach of trust, and inflicted substantially more harm, than is ordinarily the case with this type of offence. While Mr Nakhl's victims also suffered very significantly, they were on the whole younger and wealthier. Moreover, the offending was materially different. Nakhl was a case involving the actual investment funds in risky investments, rather than theft of funds to sustain gambling. That led to the favourable finding that Mr Nakhl had no intention to steal from his victims; see at [163]: In finding an absence of malice, I understand her Honour to mean that unlike more conventional offending, there was no intention on the part of the applicant to steal from the victims the funds which they had made available to him. Nevertheless, the effect for the victims was the same.
It is true that Mr Nakhl had the benefit of a discount of 12% for his pleas, while the applicant has the benefit of a 30% discount. I would accept the applicant's submission that the effective sentence imposed on Mr Nakhl had he enjoyed a 30% discount would be less than that imposed on the applicant. But for the reasons I have given, that does not entail that the applicant's sentence is manifestly excessive. To the contrary, it is very difficult to conclude in light of the sentence in Nakhl that the sentence imposed on the applicant is one that is manifestly excessive.
In Abellanoza v R [2021] NSWCCA 4, a sentence of 8 years imprisonment with a non-parole period of 5 years incorporating a 25% discount was imposed for four charges of dishonestly obtaining a benefit by deception, involving an amount of $3.7 million over an 8 year period but a single victim, namely, Silver Sea Cruises, the offender's employer. Some of the funds were gambled away, others were used to travel and to send to offshore families, and the offender had a disadvantaged background and suffered from anxiety and depressive disorders. This Court dismissed an appeal against sentence, although Button J, with whom Meagher JA agreed, remarked that the sentence was "undoubtedly substantial" (at [145]), and Fullerton J who wrote separately said that it was "at the very top" of the range: at [38]. But even so, although the timeframe of the offending is longer and the amount is slightly larger, it is very difficult to see why there is any latent error in the more severe sentence imposed on the applicant. A very important point of distinction is that Ms Abellanoza defrauded a single very substantial company which did not notice the loss for years, while the applicant stole from 12 separate victims, many of whom were in their 70s or 80s, in some cases taking their entire life savings, and in some cases inflicting extreme financial and emotional distress. It was open to the sentencing judge to regard the applicant's offending as much more serious than Ms Abellanzoa's. In short, once again the sentence imposed in Abellanoza disfavours the conclusion that the applicant's sentence is manifestly excessive.
Clarke is even further removed from the present case. Once again there was a single corporate victim from a solicitor committing eight instances of obtaining a benefit by deception involving more than $9.7 million, of which $6 million was unrecovered, over a period of some 1 year and 8 months. The victim was a company owned by one of this country's wealthiest individuals. An aggregate sentence of 6 years with a non-parole period of 3 years was imposed. However, that reflected a combined discount of 40% (25% for a plea and 15% for assistance), in circumstances where the solicitor not only had a gambling addiction but also bipolar disorder (which however was said "not significantly" to reduce his moral culpability). Those facts bear little comparison with the 12 individuals, and mostly elderly, victims of the applicant, who suffered hardship greatly exceeding that inflicted by Mr Clarke.
I have referred to Burke, Hopkins, Nakhl, Abellanoza and Clarke because they were the decisions which the applicant addressed most fully, correctly recognising that the others were less closely comparable. Most of the other decisions said to be comparable do not disclose the same favourable subjective case to which the applicant is entitled to rely. Those other decisions provide less support for the conclusion that the sentence imposed is one that is manifestly excessive. It is not necessary to summarise them; enough has been said to reject the submission that the sentence imposed was manifestly excessive. However, I would note that one, DPP v Luscombe [2024] VCC 370, has the further disadvantage that it is a first instance decision from another jurisdiction, and as Davies J and I noted during the hearing, that adds to the difficulty in drawing inferences from it. One difference is apparent from [133]: s 6AAA of the Sentencing Act 1991 (Vic) requires the sentencing judge who imposes an aggregate sentence to state what the sentence would have been had the offender not pleaded guilty.

Fineff v R

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Cases Cited (17)