Ms P Smith (Crown Advocate)
File Number(s): 2014/96392; 2014/351208; 2015/177272; 2015/213082
[2]
Judgment
Ishan Sappideen defrauded his friends of about $4.6 million of which $3.6 million approximately remains missing and there is no evidence at all as to where it has gone or what he did with it. He is 37 years of age, and as Mr Lloyd QC accurately summarised his offending in submissions, he was a big noter who showed false trappings of wealth to people and befriended them, got them to invest large amounts of money and then told lies as to why their investments could not be repaid.
Some of the offences before the court today were committed while he was on parole and some were committed while he was on bail having been arrested for the earlier offences for which he stands for sentence today. When I say "on parole", I refer to the fact that on 8 July 2005 His Honour Judge Bell imposed a sentence of eight years imprisonment with a five year and six months non-parole period to date from 12 May 2004 for a series of fraudulent offences, mostly of much less serious amounts of money than involved in the present case. At that time Bell DCJ said
"At the outset I stress that it is difficult to fully appreciate this young man's confident presentation and his ability to express himself without actually seeing him. His skills in communication and presentation are of an order that would be the envy of many members of the legal procession"
His Honour went on to say,
"His conduct involved the presentation of himself as a person of importance. He utilised that presentation to obtain cash from his victims. The cash he obtained was in large measure spent by maintaining a lavish lifestyle. He then fraudulently dealt with funds by seeking to take them form the accounts of some of his victims and depositing them into account of other victims. His conduct raised much false expectation of profit in his victims, and that expectation was not only not realised but they lost their cash as well".
…
The offender is an intelligent, articulate and well presented young man. His manner of speech is both engaging and persuasive."
The sentence that Bell DCJ imposed was reduced by 20% to take account of the utilitarian value of pleas of guilty.
Having been released on parole on 11 November 2009, his parole was to expire on 11 May 2012, and as Mr Lloyd QC put it, it was not until the last few months of his parole period that he commenced the series of offences which lead to him appearing today. As optimistically as Mr Lloyd could put it was that he had been able to get by for about almost two years on parole without offending.
He appears today having pleaded guilty to numerous offences under s 192E(1)(b) of the Crimes Act 1900 of obtaining a benefit by deception. There are 11 principal counts and a number of counts to be taken into account on a Form 1. The maximum penalty for each count is ten years imprisonment with no standard non-parole period. The Form 1 matters will be taken into account in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters, by increasing the sentence where appropriate to take account of the need for personal deterrence. I take into account the two statements of the Chief Justice, properly referred to by the Crown in submissions, namely that it would be wrong to suggest that the additional penalty should be small, and sometimes it will be more substantial when Form 1 matters are taken into account.
He has been in custody since 28 November 2014 and Mr Lloyd concedes that a lengthy term of imprisonment is mandated and it is unnecessary to consider any alternative forms of punishment. I must of course take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and I do so.
He was arrested initially on 31 March 2014 and granted bail. He was arrested on a second occasion on 28 November 2014 and has been in custody since that time.
The agreed facts upon which the sentencing proceeds are set out in a 74 page document which is a very comprehensive summary of the offending but, as Mr Lloyd concedes, remarks on sentence should necessarily contain only a summary of the facts rather than a repetition of the facts and he is content to a certain extent with the outline of the offending summarised in the Crown's written submissions.
In short, the offender obtained substantial sums of money from 20 victims purporting that he was going to invest that money on their behalf in sophisticated investment opportunities with an extraordinarily large guaranteed return and he did this by persuading victims through his false and misleading representations and conduct, putting himself forward as highly educated, able to access funds in large quantities, the owner of multiple pieces of real estate, an experienced financial trader, investor and businessman having been employed by well-known financial organisations and being advised by various expert professionals in their own fields. This deceit caused the victims to believe that he was capable and experienced in the field of investment and lead them to believe that he was genuine.
The victims were all known to him by either holding employment within his supposed companies or businesses or through an evolved friendship. The aim of the fraud was that he would offer an investment to the victims based on their personal situations, tell them that it was an investment that he had been offered by well-known financial institutions and it was a one‑off opportunity, and to prove the supposed genuineness of the investment he provided an algorithm to victims as to how the investment would make large sums of money and gave them financial documents to indicate that he was an investor who was receiving very large returns. To further bolster the confidence of the victims he said he would match the amount of money that they were going to invest, and once they agreed to invest they were directed to deposit their moneys into his accounts. To deceive the victims that their investment was growing in value he sent emails from various financial organisations and experts that reflected maturing investments at very high returns. Further, he initiated emails that purported to be from accountants who would raise an issue of a tax fee to be paid on the investment set by the Australian Taxation Office, and once the victims believed it was time to withdraw their investment funds the offender initiated many delaying tactics, including fabricating communications that purported to represent his lawyer and financial advisor. He never intended to invest their moneys and the investments did not exist.
He clothed himself with the apparent respectability of employment by Platinum Asset Management, a large and well known fund manager operating in the public space and he asserted that he was a portfolio manager with them and held a Bachelor of Science with honours from the University of Sydney, Master of Laws and a Master of Science from New York University, an MBA from NCA and a PHD from the University of New South Wales. They were all false. He also said that he was employed by Goldman Sachs, and that was also false. He boasted about his wealth and access to funds which he used to encourage and deceive investors. The same modus operandi had been utilised in the offences committed in 2001 to 2003 which were dealt with by Judge Bell. He established a number of bank accounts in 2009, 2010 and 2013. He represented to his victims that he owned or he was purchasing several valuable pieces of real estate, including in Wallaroy Road, Woollahra, Macquarie Street, Sydney, Golden Sheaf Hotel in Double Bay, Glenview Street, Paddington, Sutherland Street, Paddington, Victoria Avenue, Bellevue Hill, Whale Beach Road at Palm Beach and Esther Street at Surry Hills, and these were judged as a symbol of the wealth created by the offender but again this was all false and he never owned any of those properties.
A condition of his parole was that he must not engage in any activity, paid or unpaid, involving the control of money or assets of other people or organisations and the offences that were committed while on parole were clearly in breach of that condition. A condition of his bail imposed on 31 March 2014 was that he must not engage in any paid or unpaid activity involving the control of money or assets of other people or organisations.
I will summarise briefly the amounts involved in relation to each victim and indicate the matters dealt with on indictment, the matter taken into account on a Form1 and whether the offence was committed on conditional liberty.
[3]
Offences committed whilst not subject to conditional liberty
Victim Amount defrauded Form 1/Indictment
Henri Kalouche $305,000 Indictment
Cassandra Makrakis $70,000 Form 1
Wade Zanella $20,000 Form 1
Barton Ware & Sara Knox $42,000 Form 1
Simon Langley $300,000 Indictment
Wanwen Wen $137,500 Form 1
Richard Gan $500,000 Indictment
Stephen Busuttil $308,000 Indictment
Brett Walsh $250,000 Indictment
Ashely Hewitt $40,000 Indictment
Russell Martin $25,000 Form 1
[4]
Offences committed on Parole
Victim Amount defrauded Form 1/Indictment
Sam Pangopoulos $70,000 Form 1
Mark Cole $500,000 Indictment
Shaun Smith $200,000 Indictment
Natalie Joseph $107,000 Form 1
[5]
Offences committed on Bail
Victim Amount defrauded Form 1/Indictment
Tiffany Doble $855,000 Indictment
Danielle Smith $85,000 Form 1
Madeline McRae $163,000 Indictment
Andres Antonini $281,000 Indictment
Vivian Panigris $352,000 Indictment
[6]
Some of these victims have been repaid part of all of the money but it is unnecessary to delve into the detail of each particular date and amount of repayment.
His record includes offences occurring in November 2000 involving a false instrument for which community service was ordered and then the series of offences to which I have referred, imposed by Bell DCJ which led to a term of imprisonment.
I take account of the victim impact statements which have been provided in relation to Sam Panagopoulos, Natalie Joseph, Russell Martin, Madeline McRae, Peter Panigiris on behalf on behalf of his parents, noting the valid objections taken by Mr Lloyd to Mr Panigiris making assertions on behalf of his parents who were the victims, and also as to Mr Martin speaking of the effect upon his wife. I regard Mr Martin's statements as relating only to the effects upon him, and as to Mr Panigiris, I give those appropriate weight bearing in mind that they are, as Basten JA said in R v Thomas [2007] NSWCCA 269, the type of consequences that one would expect of this offending.
The evidence for the offender comprises of two psychological reports, an affidavit by a solicitor summarising some experiences in custody and a recent letter written by the offender himself yesterday. In the absence of them being adopted or subject to testing in cross-examination I treat them with the caution expressed by the Courts in cases such as R v Qutami (2001) 127 A Crim R 369 as to histories but to the extent that they contain admissions by him, of someone who has lied for long periods of his life about aspects of his life they clearly seem to be correct given the agreed and admitted facts in this case.
It seems clear that he had, as he said, a privileged upbringing, born on the Northern Beaches, attended Sydney Grammar School and was given all the opportunities, contacts and family support required to fashion a comfortable life. He lied about his academic record, perhaps in response to disappointment on the part of his parents and his HSC results. He said in his letter to the Court, "I can't blame my upbringing. I can't blame my parents who sacrificed everything for myself and my younger brothers". He can't blame his school or his education, or drug or alcohol addiction contrary to what he said to Mr Watson-Munro late last year. He said he is solely to blame for his actions and the behaviour that has caused such devastating and disastrous consequences for many victims of his offending.
He has had over three years in custody in maximum security to reflect on his actions and the impact they have had on the victims and he recognises finally the devastating consequences of the loss of what was probably life savings, in many cases for relatively young people. He recognises that his actions and deceitful behaviour stole their hopes and dreams and shattered the lives and impacted the wider family networks of the victims. He acknowledges that his own actions were despicable and that he hates himself for causing such pain and heartache, and recognises that the financial losses that he has caused will be felt for eternity. He is sure that they have affected all facets of his victims' life including their personal, professional and emotional spheres.
He says he has made numerous attempts to raise capital to pay back the victims but given his background and his circumstances the prospect of him raising capital to pay back $3.6 million can be confidently put at close to zero. For a man with no apparent security, equity or source of income, his expression of an intention to make an effort to come to sort of arrangement with his victims on his release in many years is a hollow expression. However, I accept that he does ultimately demonstrate some remorse and regret and is genuinely sorry for having caused the pain and suffering, to which I have referred, on these victims.
The extracts from his custodial records prepared by the solicitor shows that he discovered a cellmate who had harmed himself by apparently attempting to hang himself. He has performed his duties as a sweeper with no issues or complaints and he is respectful to staff and helpful. He is working with a good work ethic and attitude while in custody.
The helpful written submissions prepared by the Crown and junior counsel previously briefed to appear for the offender have highlighted a number of areas of common ground and pointed to the relevant principles and statutory matters which need to be taken into account.
There has been some debate as to the applicability of some aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act. It is clear that his record of previous convictions is a matter which should be taken into account, not as aggravating the objective seriousness of the matter but as disentitling him to any leniency that might be afforded to an offender with no prior record. Mr Lloyd accepted that each offence whether a principal offence or one taken into account on a Form 1 was an objectively serious matter and that concession is clearly soundly based in the evidence.
The submissions for the offender conceded that each of the offences revealed a high order of deception. I do not accept that the offending involved a significant breach of trust as an aggravating factor as the Court pointed out in Cowling v R [2015] NSWCCA 213 at [10]. Neither do I consider it an aggravating factor that the loss was substantial given that it is, on one firm view, an inherent feature of any offence against this type of legislation. The victim impact statements are not taken into account as aggravating features but taken into account for the purposes of sentencing.
As to the Crown submission that there are multiple offences which constitute an aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act, I accept that that is an inappropriate submission in this case because the aggravating factor is concerned with a situation where a single offence contains a number of allegations of criminal acts and does not apply in the current case where each offence relates to an individual victim and each offence will be the subject of a separate sentencing. Similarly, I think it is at risk of double counting if one were to regard planning or organised criminal activity as an aggravating factor, as the facts of these offences appear to me to demonstrate that planning is an inherent feature of the offence of fraud, as is the fact that the offending was committed for financial gain.
As to any discount to be applied to a term of imprisonment it is common ground that in the first place the offender would receive a 25% discount for the utilitarian value of the plea due to the fact that he pleaded guilty to all offences at an early occasion. A separate question arises as to whether any further discount should be provided under s 23 of the Crimes (Sentencing Procedure) Act for assistance provided to authorities. In closed court I heard evidence and read confidential affidavits prepared by senior officers of the Australian Federal Police and the New South Wales Police. It is inappropriate of course to refer to the contents of those affidavits and the oral evidence in these remarks which may be the subject of publication, and I have in accordance with customary practice returned the confidential affidavits to the respective police officers.
I take into account the matters set out in s 23, to which Mr Lloyd quite correctly took me, and it is true that the offender has provided some significant assistance as set out in that evidence. In my view, the further discount which should be provided in the exercise of my discretion under s 23 is 10% for past assistance so that a total discount of 35% would be applied to the term of imprisonment.
As to the prospects of rehabilitation there is little solid evidence upon which Mr Lloyd could proceed other than to assert that his remorse and contrition had been demonstrated by his early pleas, notwithstanding that they were in the face of a strong Crown case. Further he has put himself at some risk by reason of the matters concerning s 23 to which I have referred which is in itself an expression of contrition and remorse. Mr Lloyd optimistically put that his prospects of rehabilitation may be guardedly assessed on the basis that he may well have gained some insight into his offending over the last three years and may well have turned a corner. That is probably putting it as high as one can, even accepting, to the extent possible, the offender's recent unburdening of what he says is a true picture in his letter of 1 February.
I accept that there is a need for a finding of special circumstances which would reflect in a moderate reduction of the statutory ratio given that the records demonstrate a need, albeit not recent confirmation of such, but a need, for ongoing counselling and in view of his relatively young age and the fact that there will be a degree of accumulation in the sentencing process.
Mr Lloyd quite properly reminds me of the principles of totality where the High Court in Johnson v The Queen (2004) ALJR 616 at [18], which sets out a passage from Thomas, Principle of Sentencing reminding the Court to take a last look at the total to see whether it looks wrong, and in particular expressions by the Courts as to the need to consider totality in fraud cases given that most of them involved multiple offences but the application of the totality principle must not result in a blanket assessment for each offence.
The imposition of an aggregate sentence is clearly the appropriate way in which to deal with these matters. The Crown helpfully sets out in its written submissions the provisions in the sentencing Crimes (Sentencing Procedure) Act relevant to that and the need for me to indicate the sentences that would have been imposed after discount but given that there is no standard non-parole period it is unnecessary to indicate a proposed non-parole period for each sentence.
I must, of course, have regard to Pearce v The Queen (1998) 194 CLR 61 when considering questions of totality and accumulation, and the indicative sentences should indicate to the victims of the crime and the public at large the level of seriousness with which the Court regards the individual offences. I have regard to R v XX (2009) 195 A Crim R 38 where Hall J set out a number of passages concerning totality, including the familiar citation from Howie J in Cahyadi v The Queen (2007) 168 A Crim R 41. I accept the Crown submission that the three distinct groups of criminality, namely, offences committed while on parole, while on bail or in-between those two periods should not be considered simply concurrently as within each group, there were separate victims.
Taking into account those matters to which I have referred the orders that I will make are as follows:
1. The offender is convicted of each offence.
2. I impose an aggregate sentence of imprisonment of 12 years, to commence on 28 November 2014 and expiring on 27 November 2026.
3. I impose a non-parole period of 8 years, expiring on 27 November 2022.
4. The indicative sentences are:
H number Description Form 1 matters taking into account Indicative sentences
H572799716/2
1 H54912667/1 Mark Cole (Sam Panagopoulos) 4 years
H54912667/10
(Natalie Joseph)
2 H54912667/2 Shaun Smith NA 3 years, 3 months
3 H54912667/3 Henri Kalouche NA 3 years
4 H54912667/5 Simon Langley NA 3 years, 3 months
H54912667/4
(Cassandra Makrakis)
H54912667/11
(Wade Zanella)
H58866458/1
(Barton Ware & Sara Knox)
5 H54912667/7 Richard Gan H54912667/6 7 years
(Wanwen Wen)
H582543456/1
(Ashley Hewitt)
H57279716/8
(Russell Martin)
H57279716/9
(Russell Martin)
6 H54912667/8 Stephen Busuttil NA 3 years, 6 months
7 H54912667/9 Brett Walsh NA 3 years, 3 months
8 H57279716/5 Tiffany Doble H57279716/6 6 years, 6 months
(Danielle Smith)
9 H57279716/1 Madeline McRae NA 3 years, 4 months
10 H57279716/7 Vivian Panigiris NA 4 years
11 H57279716/3 Andres Antonini NA 4 years
[7]
The Form 1 matters are taken into account as indicated.
2. I find special circumstances.
[8]
Amendments
13 March 2019 - Amendments to cover sheet (case title and before).
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Decision last updated: 13 March 2019