The prisoner, Edward Charles Toller, appears today before me for sentence in relation to 14 charges of dishonestly obtain financial advantage by deception. Each of those offences is brought pursuant to s 192E(1)(b) Crimes Act 1900. The maximum penalty for each offence is ten years imprisonment. There is no standard non-parole period. There are no matters to be taken into account on a Form 1.
The prisoner was committed for sentence to this Court very speedily on 22 August 2017. The matter came before me last Thursday week when I was in the middle of one trial and had just empanelled a jury in relation to another trial but had sent the jury away for the day.
I propose to accord the prisoner a discount of 25% upon the otherwise appropriate sentence for each offence and that expression of discount will be reflected in the indicative sentences that I propose to indicate, as well as the aggregate sentence that I propose to impose pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, which I hereinafter will refer to as "The Act".
In the matter I was provided with a considerable body of material, although no oral evidence. That material included the criminal history of the prisoner, and custodial history; an agreed statement of facts; annexures to the agreed statement of facts of documents generated by the prisoner illustrating aspects of what was asserted in the agreed statement of facts; a report that had been previously tendered on behalf of the prisoner under the authorship of Tim Watson-Munro, a psychologist, that report being tendered by the Crown. There were three victim impact statements from three of the prisoner's victims, who I have given the pseudonyms AA, BB and CC. There was objection taken to the tender of those statements, which aspect of the proceedings I will deal with later.
I was also provided by the Crown with a transcript of the prisoner's electronically recorded interview conducted on the day of his arrest, 27 June 2017. Again I will come back to that material at an appropriate time.
R v Toller [2018] NSWDC 287 | Case summary | Zoe
I have had regard to all that material, as well as extensive written submissions that were provided by the Crown and the defence, as well as the material that was tendered on behalf of the prisoner, which includes a handwritten statement by the prisoner; a typed letter from the prisoner's father; a schedule of references to parts of the electronic interview; a New South Wales Department of Corrective Services document, setting out as I would understand it aspects of the prisoner's contact with the Service, both whilst in custody and before he came into custody on 27 June 2017; and other material which I will refer to. I have naturally had regard to all that material, bearing in mind the opportunity I had, limited though it was, to consider the material away from Court.
I should point out that the prisoner's time in custody will naturally be taken into account and the effective sentence I impose will commence from the date the prisoner has come into custody in New South Wales. The introductory remarks I made to the prisoner I would wish to be included within this judgment on sentence.
The activities of the prisoner giving rise to the charge extended over a period of time between 2014 and 2017. It was during this period of time that the prisoner had contact with the various victims, 14 in all. Each court attendance notice by which the prisoner was committed for sentence represent the financial advantages, or advantage in the relevant case, obtained from an individual victim.
Of course the financial advantage obtained by the prisoner was not obtained immediately on first contact and in some instances the relevant offence, that is the obtaining of a financial advantage, did not occur till some months or weeks after the initial contact with the relevant victim.
The total sum defrauded by the prisoner was $1,744,220. The net benefit for the prisoner was $1,568,882.10. The agreed statement of facts states that the prisoner had come in contact with the victims in the context of their individual dealings with what were described as other "fraudulent companies", including an investment corporation, or business, called "Velvet Assets", for whom the prisoner had previously worked.
The agreed statement of facts state that the prisoner knew from his experience of working with Velvet Assets that the victims were desperate to recoup money lost in their failed investments with that particular corporation and business and that the prisoner knew that they were "unsophisticated investors".
The money he obtained by his fraudulent activities was primarily used by the prisoner for gambling and for living expenses in various ways that are particularised in the facts, although not all the money is accounted for, and the prisoner certainly does not assist in that regard.
The prisoner registered a corporation called Palamoun Investments Pty Limited with ASIC, the Australian Securities Investment Commission, in May 2014. The corporation was registered as a 'finance and investment service', but in fact it had no licence to perform such services at any time.
The corporation was deregistered, according to the agreed statement of facts, on 9 October 2016. None of the victims who had already provided the prisoner with a financial advantage were informed of its deregistration and the facts reveal that the prisoner continued to obtain money on the deception that their money would be invested after the date of the deregistration of the corporation.
The relevant offences are allocated numbers in sequential order. Not all the numbers are in chronological order of offending, but I will deal with each of the offences in the sequence that the court attendance notices were numbered.
Sequence 1 is concerned with a victim, Sharon Winnicki(?), who invested $335,000 with the prisoner in two stages. Firstly, on 23 June 2014 she invested $300,000 and later she invested $35,000 with Palamoun, by 11 March 2015. Ms Winnicki, according to the agreed statement of facts had lost $600,000 in investing with Velvet Assets. The prisoner did not benefit financially from that particular investment. The prisoner, in early discussions with the victim, in the context of her previous dealings with Velvet Assets, introduced her to what is described as a Bulgarian company called Vodacom. He persuaded her to invest initially, or firstly, $300,000 for a purported 22% return in Palamoun, or from Palamoun, on the basis the money would be invested in Vodacom.
The facts set out the details of the conversations had between the prisoner and the victim and the representations made to her in various forms. Certainly it is clear that he appealed to her desperation to recoup her earlier losses. The prisoner had first got in contact with this particular victim in December 2013, but as I said ultimately did not persuade her to invest through Palamoun until 23 June 2014.
In relation to the money that was invested in Palamoun, I will come back to the detail of that at a later time, but it is clear that whilst the $300,000 would appear to have been invested in a bank account associated with that corporation, the prisoner received back either on that day, or the next day, a sum in excess of $124,000. The money that was invested in Vodacom was never recovered and neither was the money that the prisoner received.
The sequence 2 offence involves a victim called Roger Gordon. To this victim in early 2016 the prisoner held out that he was helping people who had lost money with Velvet Assets and another business called Capital Investments, with which the victim had lost money previously.
Mr Gordon made a number of investments in Palamoun, particularly $5,000 on 18 February 2016 in respect of which, as an illustration of the documents he manufactured that are annexed to the agreed statement of facts, the prisoner produced a false document to endeavour to show the victim how the investment was going. Mr Gordon further invested $17,500 on 15 March 2016; $16,000 on 8 April 2016; $12,000 on 11 April 2016.
Another document produced by the prisoner on 22 April 2016 - produced to the victim I should say - claimed that the investment had accrued $5,775. That document, as with all the representations that were made in documentary form to the various victims to which they relate, was false.
The prisoner met the victim in April 2016 and misrepresented his background and experience. The victim made three other investments. Those investments made on the 2nd and 3 May 2016, being two amounts of $20,000 on 2 May 2016 and $85,000 invested with Palamoun Investments on 3 May 2016. At the relevant time the corporation's bank account had a balance of only $2.96 at the time of receiving those investments. The facts set out the details of the purchases by the prisoner out of some of those funds that were deposited in the bank account of the corporation paid in by the victim. The prisoner again produced another false document on 30 May 2016 to show Mr Gordon the purported gain he had achieved.
Another investment was made on 9 June 2016, which was made from the victim's self-managed superannuation fund. As an illustration of the prisoner's conduct the facts state that between 9th and 30 June 2016 the prisoner spent $96,966 of that $100,000 on gambling and shopping. The prisoner on 6 July 2016 created a further two documents to persuade the victim that his money was safe and that the corporation was successful. Both these documents obviously were false. The victim paid another $52,000 on 11 July 2016, again from his self-managed superannuation fund to Palamoun. Another document was sent to the victim on 7 September 2016 claiming profits from the victim's investments, which clearly were fictitious.
The victim made further investments on 10 October 2016 and 21 November 2016 totalling $55,000 before the prisoner forwarded the victim what was described as a "guarantee" alleging that the victim would receive a 45% return on all of his investments made between October and March. This document was obviously false in all material respects.
The prisoner maintained contact with the victim after the last investment claiming up until 31 January 2017, falsely, that there were profits being made from the investment. Mr Gordon invested $400,000 and none of that money was recovered.
Sequence 3 is concerned with an investor called Robert Neilson, who like all the other investors was a mature person. Mr Neilson is apparently born in 1932. I am provided with the birth dates I hasten to say of the various investors. None of them were immature or youthful. Mr Neilson invested $310,000 with Palamoun after he was approached by the prisoner in early February 2016 on a promise of recouping losses that he had incurred of about $48,000 with another investment company, for which of course the prisoner is not responsible.
The victim was offered an investment that would produce 3.4% interest per month compounding and ultimately made a number of payments to make up the total sum investment. The prisoner sent emails with various promises and guarantees, including at one point a claim that the victim's investment would accrue a 40% return. This investor met with the prisoner personally. The prisoner made false promises concerning the expectation of return over a period of time and also in April 2017 told falsehoods to the victim about future payments and reasons for delay in payments to that person.
Sequence 4 offence involved a victim called Steven Hancox, who had previously unsuccessfully invested money with another corporation. The prisoner had rung him in the knowledge of this, claiming that he was going to help him and that the corporation that he, the prisoner, worked for, had been "screwing people". The prisoner promoted his investment vehicle to Hancox. Ultimately, although there is some contradiction about this in the facts that I need not dwell upon, his total investment was $67,940, between January and December 2015, derived from personal savings and a superannuation fund. The corporation had no funds in reality in the bank at the time of this investment, but the prisoner used some of the money invested by another victim to pay Hancox.
Mr Hancox pursued the prisoner in relation to the balance of the money and the prisoner told him a number of lies to hold him off. Hancox lost $37,440 and the facts state the prisoner spent the money he received from him on gambling, living expenses and the like.
Sequence 5 is concerned with a victim named Keith Connolly, who was 73 years of age and was another former client of Velvet Assets. Mr Connolly had received legal advice that the business run by the prisoner was most likely a scam, but despite this advice he went ahead on the strength of the promises made to him by the prisoner, investing a total of $15,000 between 24 February and 23 March 2016. He likewise received false documents from the prisoner to assure him in relation to his investments, as to the profits that would be made. He tried to recover money from the prisoner between October 2016 and June 2017. He was sent a newsletter, dated 2 February 2017, with false information within it. At one point in late 2017 the prisoner sent the victim a document urging increasing his investment as he was closing the business purportedly on 10 May on the basis that he was "ill". Mr Connolly's money was not recovered.
Sequence 6 involves a victim by the name of Joseph Bonnici, born in the mid 1940s, who invested $36,000 with the prisoner's corporation. He likewise was a Velvet Assets' client, although the prisoner had no contact with him in that context before he invited the victim to invest in his corporation. The prisoner claimed falsely that he had been trying to protect the interests of Velvet Assets' clients. As a result of the prisoner's deceptions, the victim invested a total of $36,000 between 18 May and 7 June 2017. When the first investment was made the corporation had a balance of $2.43 in its bank account.
Monies paid by Mr Bonnici were transferred to his personal bank account and spent on gambling, food and alcohol and other personal expenses. As I can best calculate he is the last victim in time.
Sequence 7 concerns a victim named Douglas John, who invested $10,600 with the prisoner's corporation. He likewise had a connection with Velvet Assets, although he had contacted the prisoner at that time in some respects. The prisoner introduced Mr John to a claimed 'sports betting system' and was persuaded to invest his money in February 2015 with again various promises of high returns. Mr John did turn down further enticements to invest at a later time. Again, enticements based upon completely false promises. Another invitation based on false promises was made on 25 September 2015. Finally Mr John invested a further $5,600 on 7 December 2015. The facts state that most of the money invested by Mr John was spent on gambling, alcohol and personal expenses. In February 2016 this victim, like others, was sent false information in the form of a newsletter concerning the state of his investment. He was also provided with a "progress report" in June 2016, part of the documentation annexed to the statement of facts. Another newsletter was sent to this particular victim, setting out the progress of Mr John's investment in February 2017. Mr John's money was never recovered.
Sequence 8 concerns Thomas Carey, another mature person who invested a total of $15,000 in Palamoun. Initially he turned down the approaches from the prisoner. Eventually he was persuaded, on 24 March 2017 to invest $15,000 and afterwards a false document was sent to the victim inviting him to invest more money, again with totally false promises and guarantees. He did not further invest money but he lost his money.
Sequence 9 concerns a person called Phillip Heading, who between 22 February 2016 and 26 June 2017 invested a total of $29,000 with Palamoun. These were invested in 11 separate transactions and each investment was made in response to promises and guarantees made by the prisoner of high returns, and further guarantees that all invested funds would be returned. Evidence of the character of the guarantees and the returns available is shown in a newsletter designed by the prisoner himself, the contents of which were false. Mr Heading's money was not recovered.
Sequence 10 concerns a man called Greg Dowker, who invested a total of $15,000 with Palamoun. He was first contacted in May 2017. He likewise had been an investor with Velvet Assets after losing $40,000 from that investment. The prisoner told the victim that he was aware of the losses he had sustained and he wished to help him. Obviously he did not. Three transfers were made totalling $15,000 in May 2017. At the relevant time I am told the corporation had a balance of 58 cents in its bank account. The money was transferred to the prisoner's personal bank account which then had a balance of $7.57. The prisoner wrote to that victim, as he had written to other victims, purporting to outline the profit accrued from the investment, which claims were false.
Sequence 11 concerns an investor named Danny Rochfort, who invested a total of $30,500 with Palamoun. The investments were made in seven separate transactions completed online, each investment made in response to promises and guarantees made by the prisoner about high returns on investment and that the invested funds would be returned. Similar letters and guarantees were sent to the victim as were sent to others. One such document evidenced as a balance sheet claimed that his investment of $20,000 had accrued something over 60% interest. Requests were made for the repayment of money by this victim, even though at one point the amount requested by the victim matched money that was then held in the Palamoun bank account. Of course these requests were contemporaneous with the prisoner receiving substantial sums of money from other victims. That money was not recovered.
Sequence 12 of the 14 offences is concerned with Denise McRae, who I referred to earlier. She invested a total of $356,000 with the prisoner. She first had contact with the prisoner in February 2014, again having been an investor with Velvet Assets. He had not dealt with her in that context at the time that he first contacted her. The prisoner approached her telling her that he had left Velvet Assets, believing that they were promoting "scams", and invited her to an investment seminar which was held in Sydney. A number of other people attended, apparently 20 in all, and the seminar promoted investment opportunity in gold exploration, or recovery, in Indonesia and Malaysia. This seminar apparently was conducted in May 2014.
She was not approached then until December 2014 with various promises being made to her, and on 8 December 2014 she started cautiously by investing $5,000 with Palamoun, after a number of entreaties made by the prisoner. In an email dated 5 December 2014 the prisoner after the investment sent a "guarantee". At the time of her investment the corporation had a balance of $2.62. Money that she paid on 5 December was in part spent on personal expenses. She further proceeded to invest in early January $8,000; on 23 March 2015 $10,000; on 25 March 2015 $7,000; and on 10 April 2015 $10,000. During this period of time the prisoner apparently spent $18,796 on himself, as detailed in the statement of facts. The prisoner sent out false documents to the victim, which included, as had previously been done, or was done subsequently with other victims, a guarantee on the investment.
The prisoner contacted the victim to persuade her to invest more money in July 2015. He took her and two friends to lunch, one of whom invested money through Ms McRae. He claimed to those people that they could not lose money with their investment. After further false promises, including a promise of 42% return on a three month investment, Ms McRae invested $10,000 on 25 November 2015 of which the prisoner spent, as can be now identified, $7,714 between 25 November and 3 December 2015. This money was spent on gambling, food and personal expenses.
Ms McRae invested a further $7,500 on 19 December, which included $3,750 of her friend's money, in respect of which further correspondence, including a document purportedly drafted by a solicitor acting on behalf of Palamoun, claiming falsely that Ms McRae was now at the time of the writing of the letter a "shareholder" of Palamoun. She was also guaranteed return on the sale of shares in that corporation. This document was designed by the prisoner and was false. She was sent a false newsletter claiming that her investment had at that stage accrued 62.8% of interest, or $32,020. Subsequently, on 27 July 2016 after, as I pointed out, the incremental investments, she invested $300,000 from the sale of her home with Palamoun. After which false documents were created, including a form of agreement and a balance sheet, setting out fictitious returns on the investment. This material was attached to the statement of facts.
The facts state, not just in the context of Ms McRae, but by regard to the other activities of the prisoner, that between 27 July 2016 and 30 December 2016, the prisoner spent $576,608.69, 52% of which was the money that Ms McRae had invested, on various items, including: "Alcohol, gambling, cash withdrawals, golf equipment, purchases of perfume, transfers to the prisoner's personal bank account, rent, flights, paying bills such as for Foxtel and the like". In fact in December 2016 the prisoner sent the victim a Christmas card, which is evidenced as an attachment to the statement of facts.
Sequence 13 is concerned with James Maxwell, investing a total of $72,000 with Palamoun. This was invested in four separate transactions, between 24 February 2015 and 18 May 2015. The money was spent on "gambling, taxis and other personal expenses".
Each investment made by Mr Maxwell was in response to promises and guarantees made by the prisoner of high returns on investment, and guarantees that all invested funds would be returned. The victim made the investments on the basis that he believed the prisoner was a licensed financial advisor. He did not recover his money.
Finally, sequence 14 concerns Coreen Sweeney, who invested a total of $135,000 with Palamoun. She learned of the prisoner through Ms McRae and had been shown documents sent to Ms McRae by the prisoner. She was one of the people as I understand it that attended the lunch with Ms McRae, to which I earlier referred. As I said earlier, the people at that lunch were told they 'could not lose' with their investment. After the lunch she invested $35,000; and then a further $65,000 on 16 October 2015; and $10,000 on 23 October 2015. This was a total of $110,000.
The facts set out in detail the speed with which the prisoner went about spending the money invested by Ms Sweeney on personal expenses. For example, a purchase, or purchases, of "Hugo Boss" items of $2,799; $1,526 spent at David Jones; and $649 spent at Peters of Kensington on Anzac Parade Kensington. Ms Sweeney invested another $10,000 on 23 October 2015, making a total investment of $135,000.
The facts state that between 23 October 2015 and 19 November 2015, the prisoner spent $59,978.93, said to be of Ms Sweeney's money. Again, money spent on alcohol, gambling, flights, personal bills, clothing, hotels and the like.
In early 2016 she was offered shares in the investment company and on 29 January 2016 she invested $7,500, and doing so again on 2 February 2016. She was told on 6 February 2016 that she could buy $20,000 worth of shares for $10,000. Again, a large proportion of this money she invested was transferred from the corporation's bank account to the prisoner's personal account. On 1 August 2016 the prisoner returned $8,420 to the victim, derived from a combination of monies invested by Mr Neilson and Mr Gordon, as well as money invested by Ms McRae.
In total Ms Sweeney lost $126,580.
The facts state that after complaints by Ms Winnicki (?), Mr Gordon and Mr Neilson, banking records were obtained as part of the investigation for the period between May 2014 and mid-June 2017. That set out a great deal of the expenditure to which I have referred.
The prisoner was arrested, as I have said earlier, on 27 June 2017, during which a search was conducted at premises he had at Vaucluse and a number of documents were seized and he was interviewed in an electronic interview and has been in custody since that date. In this matter there were three victim impact statements tendered. Objection was taken by the counsel for the prisoner to the tender of the documents which I was required to read in any event.
The statutory arrangements under the Act for victim impact statements set out relevant offences and circumstances in which victim impact statements may be received in relation to those relevant offences. The offences with which I am concerned are not caught within those statutory provisions.
The Crown properly took me to decisions of Porter [2008] NSWCCA and Miller [2014] NSWCCA, where the Court of Criminal Appeal determined the circumstances in which victim impact statements may be received, where they are produced to establish harm done to the particular victim in circumstances said to be an aggravation under s 21A(2) of the Act.
I need not dwell upon those judgments. I point out in relation to one of those cases there was no objection to the tender of the material at the sentence proceedings and in the other matter the relevant statements that were tendered were merely supplemented oral evidence given by the relevant victim in a trial which ultimately the sentencing judge said did not take further what he could reasonably find from the evidence of the victim at the trial.
In order to avoid any embarrassment to any particular victim, I gave the victims who prepared those statements pseudonyms. The reason for that primarily was because it would have appeared to me that the matter had attracted a deal of media interest and there were in fact on that day quite a number of media representatives in Court, which is their right. Any publication of any comments I made about the victims or their impact statements without proper and full consideration of admissibility issues and the like could cause embarrassment.
Counsel for the prisoner quite properly took me to the decision of Tuala [2015] NSWCCA 8, particularly at [58]. But I also note the contents of [59] where the Court cited a judgment of Hidden J in the decision of Youkhana [2004] NSWCCA 412, and also paras [64] - [65], particularly at [65] where Sully J is quoted from his decision in the case of Bain [2006] NSWCCA 79.
With regard to the detail of what Hidden J is quoted as saying at [58], I need only point out that his Honour noted that normally "substantial emotional harm", as it is an aggravating factor under s 21A(2), would be sought to be established through a victim impact statement. However, whether the evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, he said:
"It would need to disclose an emotional response significantly more deleterious than that with which an ordinary person would have when subjected to an (relevant offence)".
Paragraph [59] refers to Woods's J judgment when he was the Chief Judge of Common Law Division, in the decision of Berg [2004] NSWCCA 300. He noted:
"A note of caution in relation to the proper approach to fact finding concerning the impact of crime upon other members of the community or upon the victim. If that is to be achieved by way of victim impact statements then an injustice may occur in relation to a person standing for sentence insofar as the maker of the statement would not normally be available for cross-examination."
Justice Sully in Youkhana, to which I earlier referred, at [10] - [14] of that judgment, went through the steps that are required to be taken in considering whether a particular aggravating factor that might be established from a victim impact statement has been established.
After referring to Hidden J's judgment he went on to say that ultimately those steps mean that a finding of an aggravating factor under s 21A(2) must be a finding made beyond reasonable doubt and that:
"At least as a general rule that cannot be done simply by accepting and acting upon a victim's own description made in a statement that is both unsworn and untested by cross-examination."
These observations were approved in Tuala.
Mr Watson, for the prisoner, was invited to identify particular parts of the victim impact statements that were the subject of objection. He marked a great many parts of the statement of AA and marked part of the statement of CC. As I read it the statement of BB was unexceptional.
The authorities that he referred me to do not deal with the issue of admissibility, rather they dealt with the task of fact finding and weight attribution for such statements and consideration of what other evidence was available to support the claims of harm or not.
In my view the statements are admissible. However, what weight I give to them is another matter. Particularly this is true in relation to the statement of AA, which contains a great many claims which cannot be capable of establishing relevant facts beyond reasonable doubt if they are sought to be relied upon as matters of aggravation.
In that regard I do not wish to go through the statement in great detail but there are many claims made by the victim of physical problems and other issues which on the basis of unsworn statements could not be established beyond reasonable doubt. I need only say that in respect of the matters identified by Mr Watson from the statements of AA and CC, I cannot give those matters any weight and certainly they fall short of being capable of establishment beyond reasonable doubt.
One would have thought with respect that if a particular claim of emotional or physical harm was to be asserted, that might not readily be concluded as ordinarily arising from for example a crime of dishonesty, there would be further evidence independent of the victim to establish the relevant matter. There are many matters identified in AA's statement that without further evidence, not just from AA but from other sources, cannot be verified.
I accept, as I note later in my judgment, that there has been substantial loss occasioned to each of the victims, to varying degrees of course, and in the context of the amounts that they invested.
It is said by learned counsel for the prisoner that the loss from such offences is an inherent characteristic of the offence. That is not necessarily so. Offences committed of this type may involve a loss initially but money may be recovered to augment, or reduce the impact of the loss. In this particular matter, save for the examples that I gave, there was no recovery of the loss of the respective victims, save in minor ways in some instances.
The losses as I say were substantial in the context of the relevant victims being relatively small investors and clearly in respect of each victim there has been substantial financial harm caused.
In respect of the victims that have prepared statements, of which there are three, there has been emotional harm, I accept. Emotional harm in context that would be normally expected to be occasioned in the circumstances of the individual offending.
I take issue with claims of "loss of life savings", loss of one's "home", as was made by AA. These are being matters one might have thought capable of proof by material independent of the relevant victim. This could be done by bank records, or other documents that surely are readily available.
Of course I accept that where money has been taken from superannuation funds to be invested for higher returns and the money has been lost, this will have an adverse impact upon the future plans for retirement. I accept that this is true in relation to AA, BB and CC.
One wonders why people, not necessarily in the case of AA, but in other cases, took money out of superannuation funds, which are generally safe investments, to invest them in what could only be described as foolhardy promises of high return, which seem to me at face value to be fraught with foreseeable risk.
But it is fair to be said that the relevant victims fell to the entreaties of the prisoner offering returns which might reasonably to be expected way and above more conventional investment avenues. This may speak well, if I could use that expression, of the character of prisoner's entreaties and promises. That the victims relevantly succumbed to wild promises gives some context for understanding the character of the offending of the prisoner and the deceptions practised by him.
With regard to the prisoner's criminal history, there are a number of offences that need to be specifically outlined, because the prisoner has committed a number of the offences with which I am concerned while subject to conditional liberty. On 18 October 2014 the prisoner was apparently charged with offences of driving with high range PCA, negligent driving and other offences. He was dealt with on 17 February 2015. He was fined for the negligent driving offence and ordered to serve 100 hours community service in respect of a high range PCA offence from that date. He was disqualified from driving a motor vehicle, or holding a motor vehicle driver's licence, for 18 months. He was called up in relation to that offence of driving with a high range PCA, I assume, without further evidence, for failing to comply with his community service order, and sentenced on 27 November 2015 to seven months imprisonment, commencing on 27 November 2015, which term of imprisonment was suspended.
In respect of that offence on 1 May 2017 he was called up again and sentenced to seven months imprisonment to be served by way of intensive correction order.
I have been given a document today which in fairness to the prisoner discloses that in respect of that particular order that was made 2017, noting of course that he had previously been on a CSO and a suspended sentence, that the prisoner was assigned to work at St Vincent de Paul. He attended as directed. He was deemed to be "an excellent worker" and that his response to the community service work component of that particular intensive correction order was considered to be satisfactory.
It follows however from what I have said about those particular offences that any offences committed at least between 17 February 2015 and 27 November 2015 were committed whilst the prisoner was subject either to a community service order, and/or the good behaviour bond attached to a suspended sentence, or the requirement to serve an intensive correction order. The offences thus committed over that period of time were committed in breach of conditional liberty. I accept, as a general proposition, that a breach of a community service order would not be as serious for example as a breach of parole, but this offending occurring in circumstances where the prisoner was being given a number of chances by Courts.
However, on 5 August 2015 the prisoner was also convicted of driving whilst disqualified. I take that in relation to the disqualification that had been imposed on 17 February 2015. He was again sentenced to six months imprisonment, commencing on 5 August 2015, and this order of imprisonment was suspended. Thus, for the six months after 5 August 2015 any offences that were committed were committed in breach of the good behaviour bond that was required for that order.
On the same date he was also convicted of making a false or misleading statement. I take that to be, without the facts available to me, to be a statement made in relation to the circumstances of his disqualification. I do not agree with a particular submission made by the Crown in its written submissions that it was of the character of an offence of "dishonesty", as it might be considered relevant to the offending with which I am currently concerned. In relation to that latter offence, he was placed on a good behaviour bond for 12 months, pursuant to s 9 of the Act. Thus, any offences committed over the next six months were in breach of two bonds, and over 12 months in breach of the s 9 bond and thus were in breach of a conditional liberty. He was also put on a bond in relation to another offence of "knowingly make a false or misleading statement".
He was called up for sentence in relation to the suspended sentence for the drive whilst disqualified matter on 1 May 2017. He was ordered in relation to that matter to serve an intensive correction order for a period of six months, commencing again on 1 May 2017. Thus, that intensive correction order was concurrent with the seven month period of imprisonment to be served by ICO, to which I earlier referred. The comments I have made about that apply equally to this particular order. Thus, any offending after 1 May 2017 was in "breach" of that particular ICO.
The Crown has approached this detail in a different way than I have and I am grateful for the work that he put into that. But I have undertaken the task of placing the offences in chronological order and explaining the character of the orders made to demonstrate these issues that arise in relation to breaches of conditional liberty in that context.
On 1 May 2017 he was placed on another good behaviour bond for 12 months in respect of an offence of common assault, for which he was charged on 9 April 2016. Thus any, offences therein after committed from that date were in breach of that bond, although he came into custody, I hasten to say, on 27 June 2017.
There is an unaccounted period of time, that is from 18 October 2014 until 17 February 2015. Whether the prisoner was on bail during this period of time is difficult to conclude as such. The detail in his criminal record refers that these offences are recorded as "non-fingerprinted" matters. Whether he was a person who committed offences on bail insofar as there were any particular offences committed before 17 February I am unable to conclude without further evidence. Thus, I will proceed on the basis that breaches of conditional liberty occur from February 2017.
I note for example in relation to sequence 1, the offences involving Ms Winnicki (?) do not involve any breach of a conditional liberty, except for a small amount of investment between 17 February and 11 March 2015. I need not go through the various sequence offences and the Crown has dealt with that in its written submissions.
In the defence case the prisoner has written a letter of apology, claiming that he was "very aware of the awful situation I have brought upon the individual victims of the crimes I am guilty of". He said that the crimes were not a true reflection of his character, but he rightly identified that there was "no excuse for doing what I've done".
He said that there were explanations to offer for both his victims and the Court. His explanations in this respect were that he was educated at an elite private school in England and he had every chance to have "the best schooling they could afford", referring to his parents, but that "leaving home (when so young) was not what I wanted and I resented this and it certainly made me question as to why parents would do this to their child". He claimed that this set in fact a type of "domino" effect resenting authority and feeling "not wanted".
He said that at 26 years of age, I take it in Great Britain, he met a person who had a good influence upon him and they were together for four years, but she passed away with a brain haemorrhage. This turned his life upside down. This caused him to drink heavily and turn to gambling and his life "spiralled out of control". He moved to Australia as a way of putting distance between himself and this tragedy, that he could have accepted help, but that he had "soldiered on" or so he had "thought". Quite rightly he said this would be "absolutely no consolation to the victims of my selfish crime (sic)". He went on to explain that he "can't even begin to imagine the situations these individuals are in" and that he was "deeply ashamed of his conduct". He said "I do understand and highly accept what I've done and the pain I've caused my victims".
I note the apology and I consider it in the context of admissions of guilt, admittedly with some prevarications in his electronic interview. There is little recognition in the detail of the apology of the significance of his conduct in the sense that his conduct was not spontaneous in relation to each victim. It was, as was properly submitted by the Crown, calculated, deliberate and dishonest in multiple ways in respect of each victim, without any feeling of remorse at the time, and in fact taking advantage of the victims knowing the loss that many had already suffered.
I have a letter from his father setting out some detail as to his background, confirming some matters that were raised by the prisoner, and the association of the prisoner's family with the racing industry in England.
His father states that his son's gambling was the catalyst for the prisoner seeking opportunities in Australia. The prisoner apparently had worked for seven years with different well-known trainers in England. The prisoner's father said he was a friend of a very well-known racing trainer, whose name I do not propose to put on the record, and that this apparently provided a connection with Australia that caused the father to contact that person to find out if there were any "opportunities" suitable for his son. The prisoner, according to the father, leaving for Australia in August 2013, not very long, it should be pointed out, before the first approaches to the first victim. Further references are made in the reference to second-hand knowledge it would appear of the prisoner's gambling habits, and a claim that the prisoner was "prone to occasional bouts of depression".
In the context of stating that his son had the ability "to charm people young and old alike and can be very good company", he also asserted in his reference that there were occasions when the prisoner had shown himself to be "easily led by others". It must be pointed out there is no evidence of the accused "being led by others" in relation to this offending. It may be that he was "shown by others" how to defraud people of their savings, but having learnt these lessons from others he was able to apply these skills to multiple victims in multiple ways.
I have a report from a psychologist, Dr Mark Melitch (?), dated 10 April 2018. The background of the offences given to the psychologist reveals only part of the truth of the matter as revealed in the facts. The offender claimed that all of the offences related "to an arbitrage business in online betting whereby he could make profits from discrepancies in the odds offered by bookmakers". There is no evidence of such a business existing. He claimed that he "lost his investors' money instead of investing". He recalled "telling himself he could win back client's money but in reality could not". He spoke of his "loss of control in gambling".
Much of this it seems to me is at odds with the facts of the matter, or the matters with which I am concerned. Some of the schemes that he introduced to his victims had nothing to do with him betting money in the fashion as claimed in the history to Dr Melitch (?). In fact it seems quite clear that he never, in the context of the issue of arbitrage, explained to a relevant victim that this involved him betting the victim's money in the manner that he described to the psychologist. In fact his betting would appear, although there is a shortage of evidence of this, to be entirely for his own purposes.
Some of the history given by the prisoner included substantial loss of weight when he came into custody, which I am prepared to accept; claims that he would seek to improve himself with work and study whilst in custody and positive plans for the future with his girlfriend.
Some testing was done by the psychologist, but frankly not enough, one would have thought, for a clinical psychologist to undertake. One such test was the Millon Clinical Multiaxial Inventory-IV, which purports to be a scientifically validated and standardised questionnaire designed to "assess long-standing mental health problems, including personality disorders".
He claimed the results revealed that the responses indicate a history of "severe problems with substance addiction and anxiety including symptoms of post-traumatic stress disorder". Of course this is not a diagnosis, merely a statement of the presence of symptoms consistent with a matter capable of medical diagnosis.
There was also testing to identify any background of alcohol or drug use disorder, with the results indicating "in the period before he was arrested he was addicted to alcohol and cocaine". The relevant period is not defined in the report. It is dependent of course upon the information given by the prisoner. A questionnaire was utilised which was said to be "widely used" to test the degree of gambling problems indicated.
Dr Melitch concluded that the prisoner suffered from a "gambling addiction". The prisoner also completed a self-reporting document, or a questionnaire called a DASS, the depression anxiety stress scale, which is a "self-reported questionnaire of recent symptoms of psychological distress".
His responses indicated that the week before the assessment he had experienced extremely severe anxiety, depression and stress symptoms. This would be expected for a person who is in custody for the first time. In relation to the last matter, there is no evidence of any relevant depressive illness existing at the time of the commission of the offences, although there is some history from the prisoner and from his father of reporting of "bouts of depression".
The assessment of his substance abuse or use is ill-defined in terms of time and its relationship to the offending, bearing in mind the offending was over a three year period.
Of course the facts themselves reveal that the prisoner bought quantities of alcohol from the funds he obtained from the investors and certainly there can be no doubt that over the relevant period of time he indulged himself in a range of ways, including with alcohol. But the extent to which this developed simply from the success of his frauds and his capacity to spend the money on drugs and alcohol is entirely unclear. Nor, I hasten to say, investigated in the history obtained in the psychological report. But that he had the significant problems with gambling as he claims is clear from his father's reference and other aspects of the matter, including the agreed facts. The extent to which his gambling was relevantly "an addiction" as opposed to a problem fuelled by his access to other people's money is not entirely clear, and certainly not established by a self-reporting questionnaire.
It was claimed that negative experiences at boarding school, exposure to gambling and drinking during his teenage years left him - quoting the psychologist "vulnerable to mental health problems later in life". It is claimed that his "mental health was eroded by loss of self-esteem because he felt that he had not lived up to his parent's expectations". It is also said that he "did not cope well with work stress and the sudden death of his girlfriend", but moving to Australia his problems with substances and gambling continued.
The psychologist claims that the offender committed the offences at least in part in order to maintain his addictions and thereby emotionally escape from distress caused by symptoms of anxiety and loss of self-esteem. Apart from falling short of any form of medical analysis, much of this is dependent upon the truthfulness of the person, whose capacity not to tell the truth, and in fact his capacity to tell untruths is well demonstrated by the facts. None of the history provided is tested, some of it is inconsistent with what seems to be the objective facts. There may have been some "loss of self-esteem" but the prisoner certainly had, on the facts, plenty of self-confidence to deceive his investors.
Whilst I accept the prisoner gambled away money that was provided to him, this merely forms part of the picture of a person using other people's money to fund a lifestyle that he could not afford and to which he was attracted.
This is not a case, as I just pointed out recently to Mr Watson, who skilfully represents his client's interests, of a person that we often see before the Court stealing from their employer and demonstrably putting all the money through poker machines, or whatever form of gambling to which they are attracted. The facts in this matter speak of the prisoner's discernment in his spending, using the money that he had obtained from others for the purposes of his own needs, not on the basis of genuinely seeking to make money for them, and failing in that endeavour as was sought to be imagined, or demonstrated, or portrayed by the psychologist. This is shown by sums of money, substantial it would seem, spent on personal expenses, travel and other indulgences. The way he selected his victims, as the agreed facts made clear, is far removed from the picture of a person losing money of his investors through poor management or simply bad luck. That he was an unsuccessful gambler is not a novel phenomenon.
The psychologist says that his rehabilitation would be enhanced with psychological treatment. The psychologist states that his prospects of rehabilitation are enhanced by his commitment to make the best of his incarceration, such as participating in work as a sweeper, wishing to study during imprisonment and the like. I am prepared to accept that part of the prisoner's representations to the psychologist. Further material tendered today shows the prisoner's involvement in programmes within the prison, being employed as a sweeper and his desire to undertake courses whilst in custody.
There is nothing in the report and any related evidence which provides a basis for any serious consideration of various matters discussed by McClennan CJ at CL, in the decision of De La Rosa [2010] NSWCCA 194, particularly at [177] - [178]. There is no specific condition identified as existing at the relevant time of the particular conduct that would warrant less weight to be given to general deterrence. In fact, there is very unconvincing evidence of any relevant mental disability or mental illness existing. That he suffered stress as a result of his girlfriend's death in England does not justify a conclusion of the existence of post-traumatic stress disorder. Certainly the symptoms of that did not prevent the prisoner behaving in the manner that he did.
As I said, no medical evidence is produced contemporaneous with relevant events indicating either symptoms consistent with a depressive illness, or the existence of any mental illness or disability.
I accept that the prisoner may have found that being sent to boarding schools as a young child and separated from his parents was traumatic, and I can accept great bereavement suffered from the death of a person close to him. This could clearly affect his mood and have an impact upon his "mental state" in a general sense, but falls short of the development of a mental illness. The psychologist has not undertaken any assessment of his intellectual functioning.
It is the fact as asserted by the prisoner and his father, that the prisoner came to Australia to make a new start, with the encouragement of his parents with the connection with a substantial figure in the Australian racing industry. Whether that connection was made or not I do not know.
The prisoner, according to his father, had made at least two trips back to England, or Great Britain, to visit his family over the period of time since his arrival here. He was not entirely disconnected from his family and obviously in the modern world, with mobile phones and iPads, Skype connections and the like, one would only be disconnected from one's family on the other side of the world if one deliberately chose not to communicate.
That the prisoner fell into bad habits and may have developed skills in defrauding people seems to be hardly attributable to any particular state of mind that he had, other than the desire to make quick money by easy means, although with some planning and skill, without regard to the interests of others or the consequences for them, or ultimately for himself.
Although there is no evidence, nor any claim that the prisoner had an expectation his crimes would be revealed, clearly he did not seek to disguise his identity and ultimately his identity and his location was easily established.
Coming back to the sad loss of his partner in England, accepting that as a fact, obviously that would be very distressing indeed, but it is the case that on his own account he came to Australia and commenced another relationship, which he hopes to continue on his release from prison.
A great bulk of the written submissions of the parties were directed at s 21A Crimes (Sentencing Procedure) Act to which I, on the last occasion, referred to as "the Act" with some considerable concentration, particularly by the Crown, on s 44 of the Act in relation to the fixing of the non-parole period. I will come to that matter in a moment.
Although not directly addressed in the submissions, I am required to have regard to all the purposes of sentencing set out in s 3A of the Act, giving appropriate weight to matters of general deterrence, specific or personal deterrence, ensuring that the prisoner is made accountable for his conduct, fixing adequate punishment in relation to each offence, recognising the harm done to victims, promoting the rehabilitation of the prisoner, amongst the other matters within s 3A.
I have already noted there was nothing in the psychological report upon which I could conclude that lesser weight should be given to general deterrence. There is nothing in the report, I hasten to say, which says that there should be greater weight given to personal deterrence as was discussed by Gleeson CJ I the 1980s decision of Engert, referred to in the earlier quoted judgment of De La Rosa which I previously cited.
There is nothing in the material that indicates, apart from the usual hardships of custody, that requires consideration of the circumstances in custody of the prisoner as might be required to be had for a person with a significant mental disability or illness.
Before I turn to the terms of s 21A that are relevant in this matter, I accept the submission of the counsel for the prisoner that I can only sentence for the matters pleaded and not in relation to any other purported offences that may be disclosed in the facts, although the matters that the learned counsel for the prisoner referred to or adverted to were not really matters to my mind that gave rise to consideration of greater criminality contrary to what is laid down by the High Court in De Simoni. The matters to which he was referring and which the Crown refers to that are surrounding matters to the offending with which I am concerned, really are matters of context to the offending for which the prisoner is to be sentenced. These matters, as the Crown points out, are demonstrative of the character of the offending both as illustrating aspects of the planning on the part of the part of the prisoner and the character of the deceptions that were practised to gain advantage.
I agree with the submissions of counsel for the prisoner that in sentencing the prisoner and considering aggravating factors pursuant to s 21A(2) of the Act, I cannot have regard to any factors as aggravations that constitute an element of the offence.
I accept also that aspects of the offending that are an inherent characteristic of the specific offences committed cannot be considered or should not be considered additionally as aggravating factors, although these matters may aggravate the character of the offending and render the offending more serious as they may arise under s 21A(1) of the Act.
The prisoner's counsel himself pointed out - although this applies to varying degrees as far as the offences are concerned - that relevant matters to the assessment of the seriousness of each offence will include consideration of the period of time over which a particular course of conduct giving rise to a particular offence occurred, as well as considering the character of the acts relevant to the preparatory steps taken for relevant offending in respect of each offence.
I also accept the submission of the prisoner's counsel that specific amounts obtained by deception to determine the specific financial advantage, whilst being relevant matters to consider, are not determinative of the seriousness of particular offending.
In this matter, as the facts I have outlined earlier make clear, it would seem that by and large the greater the amount obtained by the prisoner from a particular victim, the more work the prisoner engaged in to obtain the relevant financial advantage or to cover up the character of the deception practised upon the particular victim. For example, in relation to sequence 1 or sequence 2, the matters I outlined last Friday, a great deal of effort was undertaken over a period of time in persuading the relevant victim to invest and then a great deal of time and effort was taken endeavouring to allay the suspicions as to the character of the financial transactions undertaken by the prisoner.
The same can be said in relation to sequence 12 to a slightly lesser degree. It seems to me, as the facts make quite clear, the lesser the amount "defrauded", the less intense or deliberate or extended or intensive the lobbying on the part of the prisoner to obtain funds from the relevant victim.
I have already noted in the facts I have outlined the repayment of money to Mr Hancox in the sum of $30,500 and to Sweeney in the sum of over $8,000. But these payments or repayments were made only after pressure from those people and definitely were not legitimate returns on their investments. Because there had been no investments, and those sums that were paid were from amounts invested by other people as the agreed facts make clear.
In respect of the sequence 1 offence involving Ms Wiencke (?), I accept that the prisoner did not keep the entire amount as he had in other instances, but the facts are that the victim lost the entirety of her investment. He may not have profited from all the financial advantage particularised in the court attendance notice, but he did obtain that advantage. The sum invested in a third party was invested in a corporate vehicle that must have been known to the prisoner to be a sham or particularly risky, particularly having regard to the 'profit' he made of over $124,000 within a day of the $300,000 being provided by the victim.
As to the issue of relevant aggravating factors under s 21(2) beyond what I have already noted, the inherent character of the offending and the conduct of the prisoner surrounding the relevant offending, the Crown has noted that but for two matters, offences in sequence 1 and 8, there were breaches of conditional liberty. The character of those breaches I have previously analysed, thus in respect of the remaining 12 charges, there are breaches of conditional liberty.
I agree with the submission of counsel for the prisoner, not that it is stressed by the Crown, that aggravating factors that are not identified in the evidence are the prisoner's previous convictions and that the relevant offences did not involve multiple victims or relevantly multiple criminal acts. Although it must be said that the facts reveal that a serious of deceptions in particular instances led to a number of separate financial advantages being obtained from individual victims as I have noted in the facts, which are reflected by one amount as 'financial advantage' in the particular court attendance notice, not as discrete amounts.
I do not find beyond reasonable doubt that the victims were 'vulnerable' such as to be characterised as vulnerable victims pursuant to the relevant subparagraph of s 21A(2). All the victims were mature and although not experienced investors, their lack of experience did vary, it would seem, from individual to individual. It was clear that many of them were personally "incautious", in fact some would appear to be quite "foolish", accepting the promises and assurances of the prisoner which seem, perhaps with the benefit of the wisdom of hindsight, farfetched and in fact impossible to achieve.
None of the victims suffered from any intellectual disability. They were all aged between just over 80 years of age to mid-40s. One victim specifically invested against advice from his lawyers.
All the victims had opportunity to make independent enquiry. It would appear that none of the decisions made by any individual victim constituted impulse conduct. Many of the victims were cultivated over an extended period of time as the facts made clear and it would seem they had ample opportunity to reflect upon the promises made by the prisoner. That he was effective in his persuasion, that he was skilful in this regard, does not lie anywhere else but within the inherent characteristic of the offending and does not reveal any particular vulnerability that the legislation contemplates as being an aggravating factor.
The Crown also submits that the offence was a "planned offence", "well thought out and meticulously designed" to deceive the victims creating convincing promotional material and consistently reassuring victims in various ways. This is obviously correct, as I have pointed out by the facts as I have outlined them to be. The Crown correctly points out that an offence that involves systematic dishonesty accompanied by planning, some sophistication and repetition will aggravate the offence. But this is also the character of the offending to which the prisoner has pleaded guilty.
The Crown cited a decision of Pont (2000) 121 A Crim R 302, particularly at [43] - [44] as authority for the abovementioned proposition which I accept. However, it is to be remembered that Pont is a decision that predates the operation of s 21A of the Act and reflects upon particular characteristics for offending of this type found in that matter.
Clearly in this matter there was a considerable degree of planning and organisation to varying degrees in committing each of the offences but it was not the same for each offence. I do not wish to repeat the detail of facts which I was forced to outline last Friday in respect of the individual offending, but what I outlined makes that clear.
Many of the victims were subject to incessant assurances or reassurances as to the safety of their investment. However, ultimately, in my view, the relevant aggravation arising from the character of the offending in each instance so far as planning is concerned, as I said, varying to some degree from one offence to the other, is one properly to be considered in the context of the operation of s 21A(1) of the Act rather than as a discrete aggravating factor under the relevant subparagraph of s 21A(2).
The offending was not part of organised crime. The offences were obviously committed for financial gain. But that is very purpose of the offending. It is, expressed in another way, an inherent characteristic of the offending. However, except for an aspect of the financial advantage in respect of count 1, the fact that he committed all these other offences solely for financial gain has led to loss to all the victims with no element of what his counsel submitted was losses occasioned by his "failure to recoup past gambling losses".
This was the theory raised by the prisoner with a psychologist and embraced by the psychologist, but does not reflect in any way the facts of the matter. The prisoner, in my view, had no intention of repaying the money except when pressed and only when he had access to money from other victims as I have said. As it was, the attempts at repayment or repayment were desultory and limited to two instances.
One of the counsel described it - I believe it was the defence counsel - as a "vicious circle not unlike a Ponzi scheme, robbing Peter to pay Paul". The character of a Ponzi scheme is that people get in at the ground floor, get back their money and the return that they were promised as people come into the scheme at a later time get nothing. This is classically the situation of Peter being robbed to pay Paul. This is not what happened here. People on the ground floor such as Ms Wiencke got nothing back and it mattered little thereafter as to the order in which people commenced investing with the prisoner. The prisoner's use of deception in the general sense after offences were completed and in a number of instances was designed to lure the victims into a false sense of security or put them off from claiming money back. The reason for this is self-evident. Unless he tried to cover his tracks and put people off, investigators would go to the authorities and his activities would be subject of official investigation. I accept as a relevant factual matter that clearly he could be identified and he was not hiding anywhere.
It is clear thus in the context of s 21A(2)(g) that the loss for each of the victims, to varying degrees - some individual losses were more substantial than others irrespective of their relevant means - were aggravating factors in the context of the conduct of the prisoner leading to most of them not getting any money back at all. These offences could be committed, but the "loss" recovered. For example, by selling assets acquired. The prisoner has no assets.
I accept in general terms, in relation to this history of 'financial' loss, that three people who have prepared victim impact statements have suffered considerable emotional toil. However, various expressions of physical harm and injury and other matters relating to aspects of their personal finances, as I said earlier, are matters which cannot be established beyond reasonable doubt on the victim impact statements given the character of the material which has been presented.
One of the claims that I cannot be satisfied beyond reasonable doubt as being established as a harm is a contemplation of one of the three authors of what he described as "euthanasia". It may demonstrate of course the extent of the emotional toil upon the victim. I understand that. Perhaps this is his reason for expressing the matter in that term. But the word "euthanasia" has a loaded emotional impact and the term as it is generally understood is concerned with the "mercy" killing of a person by a third party to relieve that person of physical pain in circumstances where death is imminent, or the pain and suffering is unnecessary, given the inevitable outcome of the patient's condition.
It may be, as I said, a matter of the person expressing the extent of emotional turmoil. That person being CC. But again, as I pointed out last Friday, a number of the claims made, and particularly in the statement of AA, involve assertions that are incapable of proof beyond reasonable doubt or were never sought to be established in a suitable fashion by appropriate evidence beyond that which was asserted in the victim impact statement.
I regret to say that the Crown Prosecutor who originally appeared in this matter did not reconsider his position in relation to the material that he presented despite my invitation to do so. It was self-evident that there were a number of claims, particularly in the victim impact statement of AA, well meaning as they may have been, that were incapable of proof based upon the say so of the victim in the form of a victim impact statement. Yet the matters were still pressed when there could have been further evidence brought from the victim, or from some other source independent of the victim, to support the claims that were made. No attempt was made to do so by the Crown, notwithstanding the concerns that I raised, and I was very disappointed with that aspect of the matter and the conduct of the prosecutor in respect of it.
The Crown's submissions in relation to the relevance of gambling addiction I generally accept. A gambling addiction will not generally be a mitigating factor in sentence in relation to offences of this type, nor will it generally reduce the moral culpability, particularly where the offences are committed over an extended period of time and particularly in this case, given that the offender had a degree of choice as to how he would finance his addiction as was conceded in the written submissions.
There is a further aspect of this matter, and that is it is clear from the evidence in the agreed facts. Not all the money - in fact a proportion of the money - was spent on gambling. It was a matter adverted to in the written submissions of the prisoner. That is, that gambling may be a mitigating factor. But it was not pressed orally.
There are quite of number of authorities which deal with this aspect of the matter and make it very clear that a supposed gambling addiction may more conveniently and properly identify the motivation for the offending behaviour as it does here. I note for example the observations of the Court of Criminal Appeal in the decision of Johnston [2017] NSWCCA 53, particularly at [36] - [38] where these matters are discussed. There was some reference by the prisoner's counsel to a decision of Hartman, the citation for which I need not provide, which on one view of it may seem to ameliorate the rigidity of the above propositions. However, the matter from Hartman identified, in my view, does not arise in this particular matter. The manner in which the money was spent by the prisoner demonstrates that the defrauding of the victims was not solely due to gambling addiction. It is clear that the gambling aspect of the prisoner's lifestyle was in fact a longstanding matter. He in fact has produced evidence from his father of the prisoner's connection with the racing industry, his involvement in it personally, and it would be clear from that evidence that he enjoyed gambling but clearly was not successful at it. The prisoner's spending, as I said, was not confined to gambling but went to funding a lifestyle beyond his means.
I note what was said by Justice Wood, then the Chief Judge of the Common Law Division, in Henry (1999) 46 NSWLR 346, particularly at [273] in the context of holding that drug addiction is not a mitigating factor to be taken into account in sentencing. Justice Wood, however, at the paragraph that I have cited, made the point that there may be other matters relevant to the sentencing exercise arising from addiction including the impulsivity of the offending arising out of an addiction such as a drug addiction, which does not arise here, and also consideration of the assessment of the prisoner's prospects of rehabilitation and his likelihood of reoffending and the like, which does arise here.
With regard to drug addiction, whilst it is adverted by Dr Melitch, with some history of drinking and drug binges and dependency and the like, in my view it is not a relevant matter in this case.
Mr Watson-Munro's report tendered by the Crown but produced on behalf of the prisoner in 2016 in other proceedings demonstrates that, in the course of the current offending, the prisoner was not claiming such a degree of dependency. I accept the prisoner may have abused alcohol and drugs from time to time, but it seems to me to be an extension of his lifestyle and there is no suggestion in the evidence of the offending that the prisoner was under the influence of drugs or alcohol to any material respectable but his judgment in some way was impaired during the course of the offending.
Clearly the character of the offending represents considerable presence of mind as does the material tendered by the Crown annexed to the statement of facts. There are matters that were discussed by Wood CJ at CL in Henry, to which I earlier referred in discussing the relevance of drug addiction to sentencing that have been taken into account, particularly the prospects of rehabilitation. But a number of them, as I said, have no relevance in this particular case. 'Impulsivity' is one.
So far as mitigating factors are concerned arising under s 21A(3), I cannot conclude that the prisoner was, at the time of the offending of "good character" for two reasons. One, because he had commenced committing criminal offences and that escalated throughout the period of offending, and secondly, because even if he committed the offence relating to Ms Wiencke first in time and at that time had no substantial offending record for dishonesty, his continuing uncharged conduct eroded such good character as he had.
Also, he did have, by the time he had concluded offending, prior convictions of significance and of relevance to this sentencing exercise, certainly not of the character of the extent of dishonesty reflected in the charges. Such good character as he may have had say in 2014 is not a matter of significant weight in sentencing in any event because his counsel conceded in the context of offences of this type that the means of committing the offences are provided by people holding themselves out to be reputable people gaining access to the trust of their clients in that context.
I note that the prisoner was not a registered financial advisor and had no right to be holding himself out to be an investor advisor or financial advisor without qualifications or registration.
His corporation was a sham with no assets, merely a vehicle for opening a bank account and syphoning the funds paid to him by other people and that is a matter that is reflected in the development of the character of the prisoner over the period of time with which I am concerned. As I said, whatever good character he had when he started his course of conduct in 2014 had evaporated very soon afterwards as he ate away at the funds provided to him by various investors. The prisoner's offending was sustained over a long time, was deliberate and deceitful and required the telling of many lies, although the number of lies varied from offence to offence.
I am unable to also conclude that the prisoner is unlikely to re-offend, at least at this time, although I am prepared to conclude on balance that he has good prospects of rehabilitation. He certainly needs professional assistance both in custody and outside custody in the context of no satisfactory of diagnosis of any relevant mental illness. The extent to which he requires professional assistance in this regard is unclear. But he clearly needs guidance as to direction in respect of his financial affairs, drug and alcohol consumption and also to address the underlying issues arising out of his schooling experience and matters of grief and loss.
I am prepared to accept that the prisoner has expressed remorse for his course of conduct and his interview with the police and in his letter through the Court. I appreciate he did not give evidence and I note the submissions of the Crown in that regard, but ultimately on balance I accept by reading the record of interview that his cooperation with the police involved expressions of remorse and taking some responsibility for his conduct.
This, however, is not a significant or substantial mitigating factor, although it is a mitigating factor to be taken into account.
Contrition is very much a matter of degree and in this matter the contrition falls well short of something that could be called significant. It does not mean that it is without weight in the sentencing exercise. Matters can be taken into account by consideration of matters of contrition and taking responsibility for one's conduct, including the timing or the timeliness of the expression of contrition. In this matter it was expressed after he was arrested but in fact after all the money had been expended.
The extent of the contrition is of its nature limited and certainly in terms of taking responsibility for his conduct, through no reason other than the fact he has no other money, he cannot pay any compensation to his victims. Although he is not punished for that fact.
I note the Crown's submissions about the explanations the prisoner gave for his conduct in the interview and some assertions by him that do not stand with the objective facts such as that he had his victims' "best interests" at heart or that he was hoping to recover their losses from reinvestment. These matters are not true. He told some discrete untruths to the police. But he also revealed the extent of other offending that was at that stage unknown to the police, although it would have been found in due course, and that is, to my mind, to his credit. He had no obligation to be interviewed by the police and he could have remained silent but what he told them assisted them, I am sure, in their investigation from the material that was seized from his property.
In this regard, initially it was submitted that I might consider a "Ellis discount". This matter was ultimately abandoned. Although it was submitted, and I accept, that the issues that may be relevant to whether I should grant an Ellis discount were relevant to the assessment of contrition and taking responsibility for his conduct.
Street CJ, as he then was, in the decision of Ellis (1996) 6 NSWLR 603, particularly at 604, said that the Ellis discount, as it is sometimes now described, was to be given where it was "unlikely guilt would be discovered and established were it not for the disclosure of the prisoner". That is not the case here. But that disclosure is relevant nevertheless.
I was only taken to a couple of supposedly "comparable cases". They are of limited value and assistance. I note Johnston was one such case and another case was Chen [2015] NSWCCA 122. Whilst there were various similarities and dissimilarities in those matters, similarities in the quantum of financial gain and the like being one such matter, there were other substantial differences. For example, in Chen there was a finding of breach of trust which is conceded in this matter by the Crown does not arise.
Ultimately, it was submitted by counsel for the prisoner that a term of imprisonment must be imposed and that I should conclude there are special circumstances pursuant to s 44 of the Act. This is submitted by the defence counsel to allow the prisoner to be released to parole "at the earliest appropriate date".
I accept the general submission that the promotion of the prisoner's rehabilitation is a relevant issue. It is also a matter required to be taken into account by operation of s 3A of the Act. The purposes of punishment can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender. But that is in the context of ensuring that proper weight is given to other purposes of sentencing such as deterrence, adequate punishment and the like.
It should be noted that the observations cited from Howie J in the decision of Zamagias [2002] NSWCCA 17, particularly at [32], are to be seen in the context of one of the earlier cases concerning the appropriateness of suspending a term of imprisonment pursuant to s 12 of the Act. His Honour's observations about having regard to youth and appropriate steps to make a person a better citizen in our community are reflected in other decisions in more effective terms such as Blackman and Walters, a decision from 2001 in the judgment of Wood J who approved the observations of King CJ from Yardley v Betts, a South Australian decision from 1979. In that decision, approved by the New South Wales Court of Criminal Appeal, it was held that the sentencing of young offenders or those without settled criminal ways, where an order that might avoid immediate imprisonment arises, can assist the offender and thus assist the community.
I appreciate the prisoner is not a young offender, but he is not a seasoned criminal either. Whilst I take into account the prisoner does not have settled criminal ways, the offending with which I am concerned is not offending either by an immature youth or even a comparatively young man and it is certainly not offending over a short of time committed impulsively or recklessly.
The Crown spent five pages of its written submissions concentrating on the issue of 'special circumstances'. It cited a large number of authorities which I have taken into account and I do not need to cite. I was trying to understand what the purpose of this exposition was, as I would understand that the Crown opposes a finding of special circumstances under s 44 of the Act.
The character of the submissions and some of the references to authorities seem to concentrate on the proposition that if there was not a positive finding that rehabilitation is likely to be successful and that such likelihood is just a "mere possibility", then a finding of 'special circumstances' should not be made. Standing by itself I would agree with that in most cases.
The Crown also submitted that because it was the prisoner's first time in custody, it of itself was not sufficient for a finding of special circumstances. I agree with that submission in a general sense. I also agree that the extent to which I consider matters relevant to the finding of special circumstances I should give little weight to self-serving statements made to Dr Melitch or elsewhere. I accept the proposition that I should approach any statements made by the prisoner about matters relating to his future plans with some caution. But even in the case where there are confirmed negative aspects of rehabilitation at the time of sentencing, there will be circumstances where the Court may feel that an extended period of supervision will assist the course of rehabilitation.
These predictive exercises of course are very problematic. One wishes one had a crystal ball, as would the prisoner wish to have had a crystal ball in 2014 to 2016. It might have helped him 'bet' more wisely or more successfully. But one of the purposes of parole is to assist and direct the rehabilitation of offenders, even those with settled criminal ways, and notwithstanding the more recent authorities which I have taken into account and accept as setting down conventional wisdoms in relation to the fixing of non-parole periods, one should not forget what was said by the Court of Criminal Appeal in the decision of Moffitt (1990) 20 NSWLR 114, particularly in the judgment of Justice Samuels of the Court of Appeal at pages 115-116 in the judgment of Justice Wood at 120-121 and in the judgment of Justice Badgery-Parker, all very wise and experienced judges, struggling with the then provisions of the Sentencing Act newly enacted, dealing with the same issue. That is, the issue of determining 'special circumstances' and fixing a non- parole period.
Justice Badgery-Parker's remarks at 136, if I have not already said so.
Perhaps I should just quote from those passages one aspect of Justice Wood's remarks at 120-121, admittedly in the context of examining the other legislation, the predecessor to the current Act:
"Although no exhaustive statement of those circumstances (for determining special circumstances) was attempted no doubt because it would have been undesirable to do so, factors which seem to have been considered proper to take into account included any assistance given by the prisoner to the authorities, any immediate confession of guilt" - which occurred in this matter - "particular aspects or prospects of rehabilitation, the age of the offender, his prior record and illness and other circumstances rendering incarceration more arduous than usual."
His Honour went on to say that special circumstances might also be useful in the support of a person who has long been held in prison and will require assistance to adjust to community living after his release. He noted:
"Resting behind these decisions can only be the recognition shared by penologists and judges experienced in the criminal law of the desirability of certain offenders being subjected to an extended period of conditional release subject to supervision on parole. This is particularly the case for offenders convicted of very serious crime and recidivists with cumulative sentences who may have spent long periods in custody and may require lengthy supervision while they adjust to their release and adapt to a world which may have significantly changed."
In that regard I note that the Court of Criminal Appeal on a number of occasions has approved a finding that there are no special circumstances where a person has been found to have excellent prospects of supervision on the basis that the person would not gain anything from parole supervision. This is not the case here.
I have come to the conclusion that there are is evidence in this case which the Crown has not taken into account or has chosen to ignore. Some of the evidence includes the indisputable fact that the prisoner had led a lawful lifestyle apparently in Great Britain, up until 2013 or 2014 in Australia.. Thus he had led a lawful lifestyle for up to 30 years.
He also did not refer in his submissions to the fact the prisoner would appear to have the support of his family.
The prisoner, in my view, as I said, will professional assistance to assist him to adjust to community living and to receive guidance in relation to the underlying causes of his gambling conduct and his problematic use of drugs and alcohol. I also note, as I have said, the prisoner has not previously been in gaol which of itself is not a determinative matter.
In relation to this matter there are a number of offences. I am required to have regard to the totality of the criminality in that regard. I note what the majority of the High Court said in Pearce v R (1998) 194 CLR 610, particularly at [45]. I do not propose to dilate upon a number of decisions of the Court of Criminal Appeal but I particularly note the decision of Hammoud (2000) 118 A Crim R 66 at [7], the decision of MMK (2006) A Crim R 481 at [13] and the various principles that are summarised in the judgment of Justice Hall in R v XX (2009) 195 A Crim R 38, particularly at [52]. A number of those principles are taken from a judgment of Justice Howie in Cahyadi v R, (2007) 168 A Crim R 41.
Of course, there is no prospect of fixing sentences that entirely concurrent. There is a requirement to differentiate between the particular sentences for each individual offence having regard to the various matters I am required to take into account.
I also note what has been observed by the Court of Criminal Appeal in R v Van Ryn [2016] NSWCCA 1, particularly adopting what Chief Justice Street said about the totality of criminality at [228].
I have determined that I should fix an aggregate sentence pursuant to s 53A and fix an appropriate non-parole period in the context of a finding of special circumstances having regard to the individual sentences that will be required as indicative sentences of imprisonment for each sequence number.
Having regard to all the above matters, I will sentence Mr Toller in these terms.
Mr Toller, in respect of all counts or all court attendance notices, you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I sentence you to an aggregate term of imprisonment comprising of a non parole period of five years imprisonment to commence on 27 June 2017 and to expire on 26 June 2022 with a balance of sentence of three years to expire on 26 June 2025.
That makes a total sentence of imprisonment of eight years with a non parole period of five years.
Those sentences commence on 27 June 2017.
The indicative sentences of imprisonment I impose in relation to Sequence 1 is a term of imprisonment of two years eight months.
In relation to sequence 2, a term of imprisonment of four years.
In relation to sequence 3, a term of imprisonment of three years.
In relation to sequence 4, a term of imprisonment of 18 months.
In relation to sequence 5, a term of imprisonment of 18 months.
In relation to sequence 6, a term of imprisonment of 15 months.
In relation to sequence 7, a term of imprisonment of 12 months.
In relation to sequence 8, a term of imprisonment of 12 months.
In relation to sequence 9, a term of imprisonment of 12 months.
In relation to sequence 10, a term of imprisonment of 12 months.
In relation to sequence 11, a term of imprisonment of 12 months.
In relation to sequence 12, a term of imprisonment of four years.
In relation to sequence 13, a term of imprisonment of one year six months.
In relation to sequence 14, a term of imprisonment of two years.
I am not required to fix a non-parole period for each indicative sentence.
I have fixed a non-parole period on the aggregate sentence.
I make orders for compensation in accordance with the orders that were passed up to me by the Crown on the last occasion.
[2]
Amendments
02 November 2018 - corrected paragraph numbering
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Decision last updated: 02 November 2018