Facts
11 I have taken the following account of the facts from the sentencing judge's remarks:
"(a) In August 2002, when he employed by Investec Bank Ltd as a financial banker, the respondent was approached by Nicholas Ross and Keith Logan for Finance to establish a national helicopter rescue programme. Although the venture did not proceed, Ross and Logan kept in friendly contact with the respondent.
(b) Count 1:
After the respondent had left the employ of Investec Bank Ltd in December 2002, in June 2003 he contacted Ross and told him he had done so. He told Ross that he had bought gold options worth $100,000 and offered Ross a one half interest for $50,000. On 17 June 2003 Ross decided to invest with the respondent and paid him $50,000 by cheque. The respondent deposited the cheque in a bank account held jointly with his wife and converted the proceeds for his personal use; he did not buy gold or gold options with them.
(c) Count 2:
The respondent had met Steve Armbrister in 1998 when their sons were in the same year at school; the families became close and socialised together on a weekly basis.
Armbrister understood that the respondent was involved in investment banking while he was employed at Investec Bank Ltd and the respondent had told him that he had left Investec Bank Ltd to engage in day trading at home. On numerous occasions in 2002 and 2003 the respondent offered Armbrister an opportunity to purchase gold options.
As a result of those offers, on 11 August 2003 Armbrister paid the respondent $130,000 by cheques for the purchase of gold options. The respondent withdrew the funds and converted them for his personal use. He did not buy gold or gold options with them. He used $60,500 of them to pay to Ross as a return on his initial investment made on 17 June 2003.
(d) Count 3:
In mid-August 2003 the respondent told Ross that Ord Minnett, brokers, had offered him $100,000 worth of gold futures and asked him if he was interested in going fifty - fifty with him in the purchase of them. Believing that he had recently received a return on his original investment, and after the respondent had said that he would finance the other half, Ross decided to invest and on 19 August 2003 paid the respondent $50,000 for the purpose of investing in gold options. The respondent converted that sum to his own use and did not purchase any gold options. Ross believed that he was entering a business relationship with the respondent and asked him to put the terms of that relationship into a partnership agreement for them both to sign. On 1 September 2003 Ross and the respondent signed a document entitled "Memorandum of Understanding", dated that day, which the respondent represented to Ross had been drawn by a Sydney law firm. From then on Ross and the respondent communicated on a daily basis to discuss strategy for trading in gold futures and. on many occasions the respondent sent Ross a summary of transactions that: he purported to have undertaken on their behalf.
(e) Count 4:
In late 2003 the respondent told Ross that he had been offered a large number of gold options and asked if Ross was interested in funding half. Ross decided to invest the return on the sale of his house with the respondent in gold and gold options. The respondent told Ross that he had sold a property and that he had received a profit of about $400,000 on its sale. Believing that they would be making equal contributions, Ross sent the respondent $549,722 by cheque. The respondent converted that money to his personal use.
On 24 December 2003 the respondent sent Armbrister $160,225, as a purported return on his investment out of moneys received by him in October and November 2003 from the sale of properties.
Between 23 April 2004 and 30 June 2004 Ross spoke to the respondent about setting up their relationship as a company so that they could keep relevant paperwork up to date and improve tax benefits, and the respondent said that he would set up a company in the name of NRGH Nominees Pty Ltd and open a bank account for it. Ross signed documents prepared by the respondent purportedly for this purpose.
In June 2004 Ross expressed a concern to the respondent that should the respondent die, he might have difficulty in retrieving what he believed to be his share of the trading profits and on 30 June 2004 the respondent sent Ross a copy of a letter which he said he had sent to Messrs Minter Ellison, solicitors, about amending his will in favour of Ross. He sent no such letter and Messrs Minter Ellison did not hold his will at the time.
(f) Count 5:
In August 2004 after speaking to Ross about the profit that Ross thought he was making from gold trading, Keith Logan decided to invest money in the respondent and spoke to him at Neutral Bay about participating in the scheme. The respondent told Logan that he could invest $15,000 to purchase gold for which he claimed to have options. Logan transferred $15,000 to the respondent's bank account which the respondent used for its own purposes.
(g) Count 6:
On 23 September 2004 at a meeting at Neutral Bay, Logan paid the respondent $30,000 by cheque asking that it be invested in the share trading portfolio of Ross and the respondent. The respondent used the money for his own personal use.
(h) Count 7:
From about 1998 the respondent and Gerald Steinmann were acquainted through the respondent's sons being in bands of which Steinmann was bandmaster; Steimmann believed that the respondent worked in the investment industry, and on regular occasions the respondent and Steinmann discussed business matters.
In October 2004 the respondent told Steinmann that he was making money investing for himself and other people and offered Steinmann the opportunity to be involved in his investment scheme.
On 3 November 2004 by e-mail the respondent sent Steinmann an outline of his current financial trading portfolio and asked Steinmann if he wished to invest. On 19 November 2004 Steinmann paid the respondent $10,000 by cheque as an investment in the share portfolio. The respondent did not purchase options with the money.
(i) Count 8:
On 1 December 2004, as a result of a conversation with the respondent, Ross sent him a cheque for $211,500 for the purpose of investing in further share options. The respondent converted the money for his own use and did not purchase shares with it.
On 15 December 2004 the respondent deposited in Logan's account $5,000 obtained from other victims of his fraudulent activity.
(j) Count 9:
In late 2004 the respondent and Ross discussed the possibility of cashing in their superannuation schemes and depositing the proceeds in the NRGH and Nominees trading account. Ross believed that the proposal was to provide the share trading scheme with extra liquidity for share purchases.
On 14 February 2005 Ross sent the respondent $250,000 from his superannuation fund by cheque payable to NRGH Nominees Pty Ltd. Since there was no bank account in that name, the cheque could not be deposited; the respondent asked for a further cheque for the same amount, and Ross provided it to the respondent. Ross understood that the respondent would use the funds to invest in share purchases. The respondent deposited the cheque in a sub account of the personal account of the respondent in the name of the respondent and NRGH Nominees Trading which was set up on 31 March 2005 with an initial deposit of that cheque. The respondent converted the money for his personal use and did not purchase shares with it.
(k) Count 10:
On 29 September 2005 the respondent left messages on Armbrister's telephone asking to speak to him. On 30 September 2005 the respondent told Ambrister that he had an investment opportunity in the oil options and asked Armbrister if he wished to contribute. He told Armbrister that he would have to provide the funds by 2 p.m. that day and that the scheme involved a guarantee.
Armbrister paid the respondent $30,000 in cash and by cheque. The respondent did not buy oil or oil options with the money.
(1) Count 11:
In about 2006 Tim Kamsler met the respondent through their sons being in the same class at school. Kamsler understood that the respondent was a successful market trader and they spoke about the stock market and trading in gold share. The respondent had told Kamsler that he was involved in investing shares, futures and options with Ross.
On 26 October 2005 respondent left a message on Kamsler's mobile phone asking if he would like to invest in gold options, which, if not taken up, would lapse that day. The respondent told Kamsler that the return was about 30% over a six to seven week period with the options maturing into mid-December 2005.
Kamsler agreed to invest $100,000 and on 27 October 2005 forwarded a cheque for $100,000 to the respondent for that purpose. During a discussion about the investment later that day the respondent told Kamsler that he had enabled Armbrister, known to Kamsler, to purchase his dream home; he asked Kamsler not to speak to Armbrister because Armbrister wanted to keep the trading scheme confidential. The respondent did not purchase options of gold with the money.
(m) Count 12:
On 7 December 2005 the respondent sent a message to Kamsler asking him if he had any more spare cash and that he had more options for a one week period with a maturity date of 14 December 2005.
Kamsler agreed to invest $30,000 and at the request of the respondent deposited that sum in the account of Graeme Hare, the respondent's father. The respondent converted the proceeds to his own use.
(n) Count 13:
In December 2003 Armbrister introduced Simon Kelly, a self-employed computer technician, to the respondent and over two years Kelly went often to the respondent's home to service and repair his electronic equipment.
Kelly understood from the respondent that he had retired after a successful career in finance. The respondent told Kelly that he was trading from home and making money from gambling on horses and had helped many people out of financial difficulties.
On 7 December 2005 at his home, the respondent offered Kelly a copper option contract expiring in one month with a "built-in upside of approximately 35%" he told Kelly that he was going to insure the options to ensure that no loss could be incurred and that he had a capital gains loss that could be applied.
Kelly told the respondent that he had $35,000 to invest and the respondent told him he needed the answer by four o'clock the following day. The respondent told Kelly that he would take whatever share was left of the $100,000. On the following day Kelly told the respondent that he would invest in it. The respondent told Kelly that he would get Ord Minnett to email him a copy of the contract.
At the request of the respondent Kelly deposited $35,000 into the account of the respondent's father. The respondent converted the money to his own personal use and did not purchase copper or copper options.
(o) Count 14:
On 23 December 2005 the respondent telephoned Armbrister and told him that he had an investment opportunity in gold and guaranteed him a return on whatever he invested when the market reopened in the New Year; he told him that he would get his money back in January with a profit of 50% and that he needed cash by 2 p.m. that day.
That day Armbrister drew $10,000 in cash and paid it to the respondent for the purpose of the best in gold. The respondent did not buy gold options with it."
12 The further matters which the respondent asked her Honour to take into account when sentencing for count 4 were a further 12 occasions when the respondent dishonesty obtained monies from Nick Ross totalling over $850,000 by representing to him that he was making investments in which he invited him to participate, whereas in fact he was making no such investments and was applying those sums for other purposes.
13 The total amount by which the victims were defrauded was approximately $2 million. The respondent used part of the money obtained from his victims for the purpose of repaying monies received by him from others and at the same time telling them that the payments were returns upon their investments. The sentencing judge found that the emotional impact of the losses upon the victims would have been devastating. Her Honour found that counts 4, 8 and 9 involved a degree of planning that increased their objective seriousness.
14 In May 2005 the respondent told Ross that they should conclude their dealings in gold and that as a result of their profitable trading they would receive $28 million to share between them. On 23 May 2005 the respondent and Ross had a celebratory dinner and in mid-May 2005 after discussing the matter with the respondent, Ross ordered two Porsche cars for himself and his fiancée to be paid for out of the NRGH Nominees Pty Ltd account. After purchasing them Ross found that the account contained insufficient funds. The respondent sent a cheque to the vendor of the cars which released them to Ross. The cheque was dishonoured and the respondent pretended to attempt to pay the vendor for them. The vendor never received money from the respondent and Ross and his fiancée paid for them out of moneys available to them.
15 On 12 August 2005 Ross discovered that there were no accounts at Westpac Banking Corporation in the name of "NRGH Nominees Pty Ltd." On 16 August 2005 as a result of civil action taken by Ross, the respondent's assets were frozen and on 14 December 2005 the respondent, who was present, was made bankrupt in the Federal Court of Australia. Between 16 December and 22 December 2005 the respondent drew cheques in favour of Logan, and Kamsler, each of which was dishonoured. Count 14 was committed by him after the date upon which he became bankrupt.
16 The respondent took advantage of friendships made with the victims and obtained from each of them, and especially from Ross, substantial sums of money. He had never traded with Ord Minnett; he did not cause the incorporation of any company called NRGH Nominees Pty Ltd; he used moneys obtained by him from the victims for family and personal expenses and did not make investments as he had said he would.