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Category: Principal judgment

Parties: Michael Shortland (Applicant)
Rex (Respondent)

Representation: Counsel:
In person (Applicant)
S Healy (Respondent)
Solicitors:
In person (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00340503; 2020/57733; 2020/88297

Publication restriction: Nil

JUDGMENT

1. P****AYNE JA: I agree with Coleman J.

2. S****WEENEY J: I agree with Coleman J.

3. COLEMAN J: Michael Shortland (“the applicant”) seeks leave pursuant s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Harris DCJ (“the sentencing judge”) in the District Court at Sydney on 18 December 2024.

4. The applicant is self-represented. A Notice of Intention to Appeal was filed on 18 March 2025, out of time. The Notice of Appeal was filed on 18 August 2025. The appeal is out of time. The applicant requires leave of the Court: s 10(1)(b) of the Criminal Appeal Act; r 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 (NSW).

5. The applicant pleaded guilty to three offences contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtain financial advantage by deception (“the fraud offences”) and one offence of threaten with intent to influence a witness (“the threaten witness offence”) under s 322(1)(a) of the Crimes Act. There were also 19 offences to be taken into account on three separate Forms 1. The sentencing judge imposed an aggregate sentence of 7 years and 4 months imprisonment, commencing on 31 May 2021 and expiring on 30 September 2028. The non-parole period was set at 4 years and 8 months, with the earliest date of release to parole being 30 January 2026.

6. The applicant raises two grounds of appeal:

1. The sentence is manifestly excessive; and

2. The sentencing judge failed to take into account 3 months of custody referable to unrelated offences which the applicant was serving while on remand for the index offending.

7. For the reasons given below, I do not consider that the applicant has made good either ground of appeal. Whilst I would grant leave to appeal out of time, I would dismiss the appeal.

Extension of time

8. The Court has a discretion to extend the time for the filing of a Notice of Appeal. Whether an extension is granted is to be determined by the interests of justice in the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”**) at [32]. In exercising this discretion, the Court should have regard to the prospects of success of the appeal, addressed by reference to s 6(3) of the Criminal Appeal Act: Kentwell at [33]-[34], as well as the explanation given for the delay: Baladjam v R [2018] NSWCCA 304 at [93].

9. The applicant filed an application for an extension of time to give notice of intention to appeal. In it he says he was waiting for the judgment to come from the Court but because of the holiday period he understood it to be delayed. He says he did not realise there was a 28-day limit to lodge an appeal until he spoke to the Prisoners Legal Service.

10. In the interest of finality, I propose to grant leave for the applicant to file the Notice of Appeal out of time.

Background

11. On 29 July 2022, the applicant was first sentenced by the sentencing judge to an aggregate sentence of imprisonment of 8 years and 9 months commencing on 17 June 2021, with a non-parole period of 6 years and 6 months, following a plea of guilty to the above-mentioned charges. The 19 additional offences were also taken into account under the three Forms 1 (“the 2022 sentence”).

12. The applicant appealed against the 2022 sentence in this Court on the following grounds:

1. The sentencing judge erred in failing to take into account 17 days in which the applicant was in pre-sentence custody;

2. A miscarriage of justice was occasioned by the failure of the applicant’s legal representatives to present evidence from a psychologist at the sentencing hearing; and

3. The applicant’s sentence was manifestly excessive.

13. The Court upheld grounds 1 and 2 and found it was therefore unnecessary to consider ground 3: Shortland v R [2024] NSWCCA 174. The matter was remitted to the District Court for resentence.

14. The sentencing judge resentenced the applicant on 18 December 2024 (“the 2024 sentence”) to the sentence indicated at [5] above. The sentence was given on identical facts to the first sentence.

15. In the appeal from the 2022 sentence, Stern JA helpfully summarised the factual background to the offending at [13]-[24] of Shortland v R. There is no dispute about the facts of the offending and her Honour’s summary can conveniently be used in this appeal to ensure consistency. Her Honour summarised the facts as found by the sentencing judge (which were in turn based on agreed facts) as follows:

“Count 1 – obtaining money from Mr Curtis by deception

13 During the 1980s, the applicant and Mr Curtis were school friends. In around 2014, the applicant reached out to Mr Curtis and, falsely, told Mr Curtis that he was a futures trader at Bell Potter in Sydney. He suggested that he could invest Mr Curtis’ money on the futures market and double the returns that Mr Curtis received from his superannuation fund. Mr Curtis agreed and from September 2014 began giving the applicant money for this purpose. The applicant told Mr Curtis that Mr Curtis was paying 10% of the trade and the applicant was paying 90%, with the profits to be divided between them in the ratio of 10:90. This was not true. In fact, the money was simply paid into the applicant’s bank account, then withdrawn by him or redirected to other bank accounts.

14 Between 2014 and 2019, the applicant defrauded Mr Curtis of $548,024. Over that period, Mr Curtis took out personal loans to carry out these investments and from around 2 September 2015 told the applicant that he (Mr Curtis) was struggling financially as a result of the money that he had given the applicant, at times to the extent that he could not even cover household expenses. The applicant’s deception included multiple lies, putting pressure on Mr Curtis to invest or make payments (including by rolling over his superannuation), taking out a loan in Mr Curtis’ name, purchasing an Audi car in Mr Curtis’ name, and forging multiple documents. Mr Curtis feared that a confrontation with the applicant would jeopardise his investments.

15 Between May and September 2016, the applicant transferred a total of $4,500 to Mr Curtis, but as with the other counts, the sentencing judge found that in the instances when the applicant returned some sums to the victims this was “in order to quell their frustrations and suspicion in order that he continue to offend without detection”.

16 Nine Form 1 offences were taken into account on Count 1. These comprised various offences of making or using false documents to obtain property or financial advantage and dealing with identity information to commit an indictable offence. Those offences arose in the context of the matters summarised above. Each Form 1 offence had a maximum penalty of 10 years imprisonment.

Count 2 – obtaining money from Ms Wyndham by deception

17 The applicant and Ms Wyndham were friendly in the 1990s. In September 2014, the applicant contacted Ms Wyndham, again representing that he was a successful derivatives trader for Bell Porter. Ms Wyndham disclosed to the applicant that she wanted to leave her husband but was concerned about her ability to support herself financially. During the first half of 2016, the applicant told Ms Wyndham that he had been thinking of ways for her to achieve financial independence and that an investment opportunity had arisen. This investment would allow Ms Wyndham to invest a small amount into an account and receive weekly returns of $400-$500 per week, however she needed to invest quickly to take advantage of the opportunity. The applicant assured Ms Wyndham that the investment was legitimate, safe and backed by Bell Potter. This association with Bell Potter was a significant factor in Ms Wyndham’s eventual decision to invest with the applicant. She did so by paying money into an account she believed was a Bell Potter futures trading account, but which was in fact the applicant’s personal account, including by incurring credit card debt, taking out a personal loan, and later by rolling over her superannuation account of $153,993.55 into an account associated with the applicant.

18 Between 2016 and 2017, the applicant defrauded Ms Wyndham of $192,755.55. Again, this involved significant lies, pressure, and forged documents. As with Mr Curtis, the applicant on occasion transferred small amounts to Ms Wyndham, which the sentencing judge found was in order to quell her frustration and suspicion.

19 Six Form 1 offences were taken into account on Count 2. These comprised making and using false documents to obtain a financial advantage and dealing with identity information to commit an indictable offence. Each Form 1 offence had a maximum penalty of 10 years imprisonment.

Count 3 – obtaining money from Mr Sanchez by deception

20 The applicant and Mr Sanchez had known each other since childhood. In January 2018, the applicant made a Facebook post regarding cryptocurrencies and Mr Sanchez enquired with him to see if it was worth investing in. The applicant suggested that Mr Sanchez invest $10,000 with him and that he would guarantee a $10,000 return in 12 months. Mr Sanchez also indicated that he was refinancing his home loan and the applicant suggested that he invest $100,000 of the home loan with him, which he said would stay in a holding account and not be put into the market. Between February 2018 and April 2019, the applicant defrauded Mr Sanchez of $309,838. This included Mr Sanchez transferring $96,500 that he had obtained by refinancing his home loan and rolling over his superannuation balance of $225,000 into an account associated with the JM Shortland Family Trust (a self-managed superannuation fund), which was then transferred into the applicant’s personal accounts.

21 On one occasion the applicant transferred $50,000 to Mr Sanchez. This money came from the earlier transfer of Mr Sanchez’s superannuation balance to the applicant. The applicant also made further smaller transfers to Mr Sanchez, which the sentencing judge found was for the purpose of quelling his frustration and suspicion.

22 As with Mr Curtis and Ms Wyndham, the applicant’s deception included lies, forging documents, taking out loans in Mr Sanchez’s name, and putting pressure on Mr Sanchez to make payments.

23 Four Form 1 offences were taken into account on Count 3. These comprised making and using false documents to obtain a financial advantage and dealing with identity information to commit an indictable offence. Each Form 1 offence had a maximum penalty of 10 years imprisonment.

Count 4 – influencing a witness, Ms Wyndham

24 Four days prior to the applicant’s committal hearing he sent Ms Wyndham a message on Facebook. The sentencing judge summarised the message as follows:

“Are you going through with this for real? Take me away from my kids after you betray me. Out of my hands in a few days, but you must remember the honey trap pics… doggy on the bed, tits in the shower. Yeah, that honey trap. Well those will be the next COVID viral talking point in Sydney. Every media available are waiting already, especially for the all-fours woof woof. It’s not 1995 where it stays a week and fades. It’s perma-sticky, growing. Followers of mind blowing size and end of an life in this Ozzie homo. The money is gone forever if you press on. Pull out now, don’t be ridiculous believing him and the bullshit stories. Gone way too far now and you have lost zero. Wasn’t time to get it yet, was it. You are locking in permanently being gone. There is no insurance but me being healthy. I was sick, you must know that. Text this tomorrow. [The applicant included his own phone number]. It’s just me. Don’t believe RS crap. Tell no-one else. Years without my kids for this sideshow. It’s gone forever if I’m gone forever. Surely you don’t shoot yourself in both feet for revenge versus unwell back then. Those pics are going to be the beginning, middle and end of the social media explosion. Not seen here yet before and for what… to hurt my kids for 8 years.””

Remarks on sentence

16. In the sentencing judge’s remarks on sentence (“ROS”), her Honour referred to and relied on the recitation of the agreed facts in the 2022 sentence judgment which was annexed to the ROS. Her Honour’s findings are summarised in the facts extracted above at [15].

Objective seriousness

17. Her Honour, having noted the legislative guideposts of the maximum penalties for such offences, listed as significant the following matters when assessing objective seriousness for dishonesty offences:

“1) The amount of money defrauded and whether it was retrievable.

2. The length of time over which the offences were committed.

3. The offender’s motive.

4. The degree of planning and sophistication.

5. Where relevant, an accompanying breach of trust.”

18. Her Honour observed that general deterrence is of particular importance in sentencing for fraud offences, as is denunciation and recognition of the harm done to victims. Her Honour properly acknowledged that there is a community interest in appropriate punishment for this type of offending.

19. Her Honour considered the sums defrauded as part of her assessment of the objective seriousness. These were $550,000 of Mr Curtis’s money over a period of almost five years, approximately $192,000 of Ms Wyndham’s money over two and a half years, and approximately $310,000 of Mr Sanchez’s money over a period of 15 months.

20. The sentencing judge summarised the offending as against each victim, all of whom the applicant had a social relationship with prior to the offending. In characterising the applicant’s offending, her Honour noted that in all of the offending conduct the applicant’s deception included him telling lies, forging documents, taking out loans in his victims’ names and putting pressure on them to make payments.

21. Although the applicant returned some money to Mr Curtis and Mr Sanchez, her Honour found this was not compensation or out of remorse, but in order to quell frustration and suspicion so that he could continue to offend without detection.

22. The sentencing judge was satisfied that the applicant’s motive across the period of offending was to feed his gambling addiction, the genesis of which her Honour said was likely related to his mental health. The agreed facts revealed that the applicant gambled $1.7 million between 2000 and 2019. Notwithstanding the evidence of the lease of luxury cars, her Honour indicated there was no other evidence of the trappings of wealth or a lavish lifestyle, with the applicant receiving unemployment benefits and living out of his car during the later period of his offending. It was not a case, her Honour said, of pure greed.

23. The sentencing judge described the level of planning and sophistication as “conniving and elaborate”, with the applicant posing as a successful stockbroker with a prestigious firm. Her Honour summarised the course of conduct as follows:

“He sent many messages and emails, making many representations to his victims attesting to the legitimacy of their supposed investments, most of which he gambled away. His gambling was associated with reckless and impulsive behaviour emblematic of what has been diagnosed as bipolar disorder.”

24. Overall, her Honour was not satisfied that the level of deception was outside what might be anticipated for offences of this type, rather they are matters which should be considered as part of the overall factual matrix.

25. The sentencing judge found the applicant to have taken advantage of vulnerable people who had entrusted him with their financial future, all the while intending to use their money for his own purposes. Her Honour observed that while she referred to this behaviour as “seriously morally reprehensible conduct” in the 2022 sentence judgment, the conduct needed to be considered in light of a diagnosis of bipolar disorder.

26. Expanding on the relevant factors in assessing objective seriousness for dishonesty offences extracted above at [17], her Honour noted that an assessment of the objective seriousness of the applicant’s dishonesty offences was largely informed by the sums of money involved, the period of the offending and the aggravating feature of substantial harm, particularly in the case of Ms Wyndham.

27. With respect to the threaten witness offence, described at [15], her Honour characterised the threats as sufficiently explicit to cause humiliation and fear, the design of which was to keep Ms Wyndham from giving evidence. Her Honour noted however that the threats were constituted by a single approach in which the applicant clearly identified himself and should be considered in light of the reckless behaviour associated with the applicant’s bipolar disorder. The offence was found to fall below the midrange of objective seriousness.

28. It was accepted that the various Form 1 matters – which involved acts of “trickery and deceit” – placed upwards pressure on the sentences for each principal offence, with her Honour concluding they necessitated an increased emphasis on both specific deterrence and retribution.

Victim impact statements

29. Before the Court were Victim Impact Statements (“VIS”) from Ms Wyndham, Mr Sanchez and Mr Curtis. Her Honour noted they each spoke of the overwhelming impact the applicant’s conduct had on them financially, psychologically, physically, on their very livelihoods and the way in which those offences continued to pervade their daily existences. A detailed assessment of those VISs is contained in her Honour’s 2022 sentence judgment, annexure A of the 2024 ROS.

30. Ms Wyndham’s VIS recounted the fact she had spent the last six years trying to repay the debt the applicant coerced her into, and her marriage has since dissolved. Ms Wyndham described suffering significant distress since discovering the fraud, facing severe physical and mental health issues and struggling to pay for food.

31. In Mr Sanchez’s VIS, he said he would never be in a position to recoup his financial losses and is still paying off a significant loan and associated interest. He said he would no longer be able to retire at the age he thought he would and struggles to trust people. He too recounted the physical and mental toll the applicant’s offending had on him.

32. In Mr Curtis’s VIS he recounted how he withdrew money from his terminally ill mother’s credit card unbeknownst to her, for the applicant. He said he is unable to trust others and cannot trust himself to make financial decisions. He noted he will be unable to retire when he wanted, and his children will not be able to have the start in life he envisaged.

33. On resentence the Crown tendered further VISs from Mr Sanchez and Mr Curtis, which spoke to the way in which the applicant’s offending continues to profoundly impact different facets of their lives.

34. Her Honour was satisfied that the impact on each victim, and in particular on Ms Wyndham, was of an effect that the loss and emotional harm amounted to substantial harm and therefore was a circumstance of aggravation.

Criminal history

35. Her Honour referenced the applicant’s criminal history which is largely composed of driving offences, although more recently (prior to the 2022 sentence proceedings) he was convicted of domestic violence offences.

36. The sentencing judge recounted that the applicant was remanded in custody from 2 March 2021, following the revocation of an Intensive Correction Order (“ICO”) due to further offending. While in custody he was sentenced to an aggregate term of 12 months imprisonment with a non-parole period of 3 months. Both sentences relate to driving offences. The applicant had been in custody by reason of the index offending since his non-parole period ended on 17 June 2021. The additional 17 days of presentence custody, the subject of ground 1 of the first appeal, was a period commencing upon his arrest and remand in respect of the threaten witness offence.

37. The sentencing judge found the fact that the applicant was subject to conditional liberty (an ICO and a Community Correction Order) when he committed the threaten witness offence against Ms Wyndham was an aggravating feature on sentence.

38. The sentencing judge also found that the applicant’s offending over a six-year period and whilst on conditional liberty with respect to the threaten witness offence, disentitled him to leniency. As such, her Honour said it required specific deterrence to be given sufficient weight, notwithstanding due regard to the applicant’s mental health.

Subjective features

39. The applicant’s background on sentence was informed by:

(a) evidence given by Dr Pusey, his primary report dated 5 December 2023, and a supplementary report dated 14 November 2024; (b) a letter of Dr Yu and a mental health plan from Mona Vale Medical Centre dated 7 October 2020; (c) medical records relating to the health of the applicant’s then 14-year-old son; (d) a Sentence Assessment Report (“SAR”) dated 20 June 2022; (e) the applicant’s mother and wife’s (“Ms Shortland”) evidence at the 2022 and 2024 sentence hearings; and (f) letters of support by the applicant’s mother and Ms Shortland dated 20 November 2024.

40. Although the applicant did not give evidence in the 2022 sentence proceedings, he gave evidence in the 2024 sentence proceedings. He also provided a letter to the Court dated 25 November 2024. The Crown tendered a 28-page document containing Justice Health records produced under subpoena. Her Honour noted that there was a substantial amount of material relied upon by the applicant not before the Court for the 2022 sentence.

41. Her Honour acknowledged that following his successful appeal, by virtue of the fact the applicant was no longer a sentenced prisoner but on remand, he was transferred from a minimum to maximum security prison, where he had previously been assaulted and placed in protective custody.

42. The sentencing judge recounted the applicant’s upbringing by way of background, noting his father’s violence during the applicant’s childhood. Her Honour also referred to the applicant’s brother-in-law’s death by suicide in 2018 and the subsequent deterioration of the applicant’s relationship with his sister.

43. The applicant disclosed to Dr Pusey two episodes of sexual abuse by a local Catholic priest (who has been convicted of such offending though the applicant was not involved in those proceedings). These assaults occurred when he was between the ages of 8 and 9 and when he was 14. In 2015 the applicant initiated, then suspended, a civil suit with respect to the abuse due to difficulties he found in dealing with it. He re-contacted his lawyers in 2021 and a letter from New Path Legal before the Court dated 28 April 2022 suggested proceedings were ongoing.

44. The applicant began using drugs in his teenage years, starting with cannabis, before moving to cocaine, on which he ended up spending between $5,000-$6,000 a week. Following the birth of his son, he switched to methamphetamine. He said he used drugs in order to get up, feel normal and mask emotions associated with his sexual abuse. Her Honour noted that the applicant accepted that his mental health and associated drug and gambling addictions required professional intervention, which he intends to seek.

45. The applicant is separated from his wife, though they remain legally married and supportive of each other. Their daughter was born in 2008 and their son in 2010. In late 2009, the applicant “lost everything”, according to his mother, in a financial downturn. This ultimately led to the loss of the family home.

46. The applicant was unable to hold down a job between 2010-2015 and reported experiencing symptoms of bipolar disorder for the first time after the birth of his son.

47. Ms Shortland gave evidence that the applicant, well before their children were born, struggled with cocaine addiction, as well as using ice for a period. Ms Shortland said the applicant struggled with both drug and gambling addictions throughout their marriage. She indicated that he had been admitted to Manly Psychiatric Hospital. Ms Shortland’s evidence was that she had no idea about the extent of his gambling until the time of the 2022 sentence proceedings.

48. Her Honour noted that the applicant had not received mental health treatment since his return to custody. The applicant indicated that he had only superficially engaged in psychological therapy since 2010 due to an unwillingness to discuss his trauma and drug use or be judged as a bad parent. The applicant had only cursory compliance with medication, with his evidence being that he would instead rely on illicit drug use to deal with his mood swings due to paranoia about the side effects of prescribed drugs.

49. Dr Pusey diagnosed the applicant both at the time of sentence and his offending, as suffering from symptoms related to bipolar affective disorder, substance abuse disorder and gambling disorder. He also said the applicant likely met the criteria for post-traumatic stress disorder related to childhood abuse and the suicide of his brother-in-law, as well as major depressive disorder as a result of these proceedings and his incarceration.

50. Dr Pusey opined that the applicant’s substance abuse and gambling were likely driven by the effects of his bipolar disorder. As to Dr Pusey’s opinion on the applicant’s mental health and its relationship to the offending, her Honour said:

“Dr Pusey did not unequivocally find a direct nexus between the offending and Mr Shortland’s mental state, rather he found that the research, in conjunction with the available information including Mr Shortland’s stated history, suggested a strong relationship between them.”

51. In cross-examination, it was accepted by Dr Pusey that the applicant’s reliability as an accurate historian was undermined by his inconsistent recount of his diagnosis and medication regime to different people. Her Honour said, however, that the inconsistent accounts “did not undermine his diagnosis or his opinion that Mr Shortland suffers bipolar disorder and it was likely active during this period of time”.

52. Her Honour found it difficult to accept that the applicant’s evidence – which was corroborated to an extent by his mother and Ms Shortland – about his bipolar symptoms during the period of offending was invented or exaggerated as the Crown submitted. The sentencing judge noted however that the offences were committed over a number of years and on occasion involved a significant degree of planning and deception. This, her Honour said, was not always reflective of the impulsive behaviour and reckless decision making associated with a diagnosis of bipolar disorder.

53. With respect to the relationship between the applicant’s offending conduct and his mental health, her Honour said:

“It is not possible to positively link the entirety of his conduct over those years as associated with a poor state of mental health, although the interplay between his mental health, his drug use and gambling cannot be discounted. Mr Shortland’s moral culpability, to the extent he was suffering from bipolar disorder and the emphasis on general deterrence is reduced.”

54. Her Honour found that full-time imprisonment would weigh more heavily on the applicant, and this should be taken into account in the ultimate sentence. The more onerous nature of custody arose as a result of the applicant’s son’s numerous heath issues, both his children’s anxiety and attention deficit hyperactivity disorder, the applicant’s own mental health issues as identified by Dr Pusey, and the significant delay and uncertainty caused by the applicant’s first appeal and his associated return to maximum security prison.

Remorse

55. The sentencing judge found that, notwithstanding the utility of the guilty pleas, they were not a reflection of the applicant’s remorse at the time they were made. The SAR described the applicant minimising and justifying his behaviour, with his focus being on the consequences suffered by him and his family. This was echoed in the evidence given by Dr Pusey.

56. The sentencing judge said that the applicant’s expressions of remorse were considerably more favourable to him in the 2024 sentence proceedings and are articulated at length in his letter. Her Honour found the applicant to be genuinely remorseful for what he did, noting that limited expressions of his remorse may be a result of guilt, shame and the applicant’s bipolar disorder. Consequently, her Honour rejected the Crown submissions that the applicant’s expressions of remorse were gratuitous ones.

Prospects of rehabilitation and risk of re-offending

57. The sentencing judge found the applicant’s remorse boded well for his prospects of rehabilitation and his risk of reoffending, with Community Corrections assessing him as a medium to low risk. Dr Pusey identified the applicant’s capacity to address his mental health as essential to reduce his risk of offending. This, her Honour said, would require professional support to address issues relating to his childhood trauma, chronic gambling and drug addictions, emotional coping, decision making and prosocial thinking.

58. The applicant’s evidence was that he was motivated to engage in rehabilitation and eventually return to the workforce. The sentencing judge noted his children remain a significant motivation, and his mother and Ms Shortland were strong prosocial supports. Her Honour found the applicant’s risk of reoffending as medium to low, and heavily dependent on his motivation to engage in treatment, with his prospects of rehabilitation being at least fair or reasonable.

Sentence

59. It was accepted by the applicant’s then counsel, and her Honour found, that no other sentence than one of imprisonment was appropriate, having regard to the nature and extent of the offending.

60. In imposing an aggregate sentence, her Honour took into account the increased onerousness of custody for inmates across New South Wales as a result of the Covid-19 Pandemic, noting however that restrictions imposed had largely, if not entirely been lifted.

61. The sentencing judge’s indicative sentences were less than in the 2022 sentence proceedings as a result of the evidence relating to the applicant’s mental health that bore on his experience of custody, moral culpability and necessitated a reduced emphasis on general deterrence. The indicative sentences also reflected more favourable findings with respect to remorse and prospects of rehabilitation, as well as taking into account the delay in finalising proceedings which exacerbated the applicant’s anxiety.

62. The sentencing judge considered comparative cases relied on by the applicant. Her Honour noted (aside from the fact that sentencing is not a mathematical exercise but an instinctive synthesis) that all but one of the cases involved early pleas of guilty and associated 25% discounts, as well as a number of other differences from the applicant’s circumstances.

63. Her Honour determined the matters affecting accumulation or concurrency to include the defrauding of three unrelated victims, some temporal connection between the offences and a due regard to the principles of totality. The sentencing judge found that whilst there was a nexus between the fraud committed on Ms Wyndham and the threaten witness offence, a level of accumulation was necessary to reflect the seriousness of the latter offence.

64. Her Honour made a finding of special circumstances as a result of the applicant’s motivation to address his mental health and addiction issues, which required an extended period of parole.

65. For the applicant’s guilty plea on the eve of his trial her Honour applied a 5% discount for each offence, reflected in the indicative sentences.

66. Her Honour imposed an aggregate sentence of 7 years and 4 months imprisonment, commencing on 31 May 2021 and expiring on 30 September 2028. The non-parole period was set for 4 years and 8 months, with the earliest date of release being 30 January 2026.

The appeal

New material

67. As has been stated, the applicant asserts two grounds of appeal. He provided some written submissions and other documents. These were dated 31 August 2025, 6 October 2025 and 12 October 2025.

68. The 6 October 2025 material is, in so far as it seeks to put additional documentary material before the Court, new or fresh evidence. The distinction between “new” and “fresh” evidence and its use in an appeal was discussed in Lawavou v R [2025] NSWCCA 35 at [111]-[117]. In essence, the material is “fresh” evidence if it is evidence that the applicant was not aware of at trial and could not have discovered with reasonable diligence. It is “new” evidence if it was available to be adduced at trial, actually or constructively, but was not adduced. Evidence is constructively available if it could have been discovered or available with the exercise of due diligence.

69. The applicant says that this material was only able to be put forward now as it was on his Samsung phone which had originally been misplaced by the police. The phone was found in 2021 and was stored with the applicant’s property at Cessnock Correctional Centre. It was then sent to his newly engaged solicitor, Mr Hardin, and a forensic search of the phone was done by a Mr Alt. The applicant says the documents were found during that search.

70. It is unclear when the applicant had Hardin lawyers obtain the forensic search of his phone or when the documents were provided to the applicant. It seems it was sometime before the 2024 appeal as he says it was done in “anticipation of a future sentence appeal”. Hardin lawyers instructed his counsel in the first appeal (Shortland v R). Accordingly, it is unclear why he could not deploy that material at the first appeal. If this is right, it is new evidence which is usually more difficult to adduce in an appeal.

71. In this case, I am prepared to accept that the distinction between new and fresh evidence can be put to one side and ask whether the additional material may have had a bearing on the sentencing outcome and should be admitted to avoid a miscarriage of justice (see O*’*Hanlon v R (Cth) [2025] NSWCCA 118 at [39]).

72. The Crown objected to all but the last page of this material. The last page, marked document 6, contains a Corrective Services record of the applicant’s good behaviour and progress whilst in custody. That document would be received on the usual basis if the Court found error and was to resentence the applicant. For the reasons which follow, as no error has been demonstrated and it is not necessary to resentence, the material is irrelevant.

73. As to the balance of the material, even accepting the applicant’s explanation for it not having been adduced before, I do not consider that the material is relevant to the determination of the appeal and should not be admitted. It does not demonstrate that a miscarriage of justice has occurred or is otherwise relevant to the sentence. The material is as follows:

74. Bell Potter documents (documents 1 and 2): the applicant says these prove that the sentencing judge’s conclusions that he deceived his victims by incorrectly stating he “worked for/through Bell Potter” (in the applicant’s words) were wrong. I do not accept that there is any substance in this assertion. The email shows that the applicant had an account with Bell Potter Securities. The tax invoice from Bell Potter to the applicant confirms he undertook trades with them. The deception he practiced on his victims was telling Mr Curtis that he was a futures trader at Bell Potter. He told Ms Wyndham he was a successful derivatives trader with Bell Potter. Neither of these statements were true. He never worked for Bell Potter. It is not to the point, and not to the applicant’s credit in this appeal, that he seeks to downplay those mistruths by relying on material which shows that he undertook trades with Bell Potter.

75. Document 3 is a “disclaimer” apparently signed by one of the victims, Mr Sanchez, on 12 May 2018. The applicant says such statements were given to each of the victims on numerous occasions, in numerous formats. Even overcoming the fact that the applicant has pleaded guilty to all the offences, thus admitting the criminality of his conduct reflected in the charges, the document is not relevant to that criminality. That investments may be risky can be accepted; however, he was not pursued for negligent financial advice, but fraud. The disclaimer does not deal with his dishonestly obtaining the victims’ money by deception. Again, it is not to his credit that he seeks to rely on this document on this appeal.

76. Document 4 is a text message which the applicant says shows that $50,000 was returned to Mr Sanchez. It shows Mr Sanchez mentioning to the applicant the transfer of $50,000 of his money to an ING account and the applicant saying it was to set up a loan facility. It is unclear the circumstances surrounding the movement of this money to the ING account. In any event, the sentencing judge found that this was money previously taken from Mr Sanchez’s superannuation account. As I have said, her Honour found that moneys returned by the applicant were to quell the victims’ frustration and suspicion so that he could continue to offend without detection. It should not be received.

77. Document 5 is a reference from a Craig Roberts dated 10 May 2022. The applicant seeks to rely on it to show his “extensive trading history/experience as well as stating that I had traded through Bell Potter”. With respect to the Bell Potter point, I have dealt with this above. As to the extensive trading history of the applicant, again if true, it is not to the point in the circumstances of his repeated defrauding of the victims.

78. None of that material should be received on the appeal.

Ground 1

Principles

75. Ground 1 asserts that the sentence imposed is manifestly excessive. The principles relevant to assessing whether a sentence is manifestly excessive are well known and can be shortly stated. They were set out by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] and endorsed as well as supplemented by Bell P in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (Gleeson and McCallum JJA agreeing) at [41]-[42]. It is not necessary to repeat all those principles. It is enough to say that sentencing is a discretionary matter, in which there is not a singular ‘correct’ sentence and mere disagreement by appellate judges with a sentence imposed does not render it manifestly excessive: Nair v R [2025] NSWCCA 136 at [70] (Yehia J, Stern JA and Cavanagh J agreeing); TH v R [2025] NSWCCA 121 at [4] (Bell CJ, Garling J agreeing and Yehia J in dissent); R v White [2025] NSWCCA 111 at [26] (Bell CJ, Payne JA and N Adams J agreeing).

76. There is a “very heavy practical burden” on an appellant to make out the ground of manifest excess: R v Elemes [2000] NSWCCA 235 at [22] (Sully J, Adams J agreeing); He v Sun at [42]; TH v R at [5]; Nair v R at [71]. This burden will only be met, and intervention justified, when an applicant shows the kind of disproportion which is “so manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law”: R v Elemes at [23]; He v Sun at [42]; Nair v R at [71].

77. In so far as the applicant seeks to refer to other “comparative cases” to establish this ground, Yehia J, in Nair v R said at [74]-[75]:

“74 The focus is not on the number of comparative cases relied upon in support of the contention that the sentence is manifestly excessive, but rather whether the cases share sufficiently common, or at least similar, features to assist an appellate court in promoting consistency of sentencing. Referring to Moodie, Bell CJ in R v Thompson [2025] NSWCCA 133 at [42] (Huggett and Rigg JJ agreeing), reinforced the view that the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, pointing out that the process of comparison is nuanced and requires great care.

75 In some instances, an applicant asserting a ground of manifest excess will not be able to point to any comparative cases: see Meers v R [2025] NSWCCA 27 (“Meers”). Essentially, an appellate court is required to engage in a process of evaluative judgment requiring consideration of multiple factors including the objective seriousness of the offence, the applicant’s subjective case, the purposes of sentencing and relevant sentencing principles: Meers at [112] (Yehia J, Bell CJ and Stern JA agreeing); Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239 at [9] (Payne JA and Button J, Schmidt J in dissent).”

Applicant’s submissions

78. Much of the applicant’s written material contains statements dealing with events prior to the 2022 sentence and which, if relevant, could and should have been (and in some instances was) agitated on the first appeal. For example, in his written material dated 31 August 2024 titled “Headnote Summary”, the applicant recites some of the headnote from Shortland v R. However, he also includes assertions that he did not sight the full agreed facts relied on in the 2022 sentencing and alleges his counsel did not effectively represent him in those proceedings. These matters should have been raised in the first appeal.

79. The applicant says that a combination of factors renders the sentence imposed manifestly excessive. Under the heading “Current Personal Circumstances” the applicant outlined the mental health conditions both his children face, his elderly parents’ health issues and reliance on him and his own psychological diagnoses and associated treatment needs. He also outlined his good behaviour in custody which had led to his C3 ‘work release’ classification, and the existence of post-release arrangements for work and accommodation.

80. Under the heading “Comparative Sentencing” the applicant included a table of six matters which he submits are comparative sentences in the District Court which show “much lower sentences for significantly higher amounts for the same or similar charges/convictions”. The table includes the money involved, the sentence imposed and some identifying features going to the name and date of the matter. As such, it is difficult to identify some of those cases, and in any event, they are of limited use. As the principles referred to above indicate, whilst sentences in comparative cases can give consistency in sentencing, each case will be determined by the facts, the objective seriousness of the offending, subjective features of the offender and the other matters that go into the instinctive synthesis of the sentencing exercise.

81. The applicant refers to his subjective factors (including his mental health issues), the difficulty of his significant time in gaol and the hope his sentence can be reduced. The applicant noted that the Court accepted bipolar disorder and related conditions were casually relevant at the time of offending, and reiterated Dr Pusey’s finding as to the extent of his mental illness. The applicant also conveyed that after his sentence was set aside by this Court, he was placed in maximum security prison for almost 6 months, and during that time his life was threatened.

82. The document dated 12 October 2025 is styled as a letter to the Court. In it, the applicant summarises the points outlined above and raises additional ones. Many of the points raised by the applicant seek to shift blame to the victims or downplay his conduct. He seeks, wrongly, to impugn the conduct of the investigating officer. The applicant by this letter seeks to diminish the seriousness of his offending, I infer in support of his claim of manifest excess. However, in raising the conduct of the victims, alleged and unsupported mistakes in the calculation of the claimed loses and the conduct of police during the investigation, he goes beyond matters relevant to this ground. As I have already pointed out, he has by his pleas of guilty accepted he engaged in criminal conduct. Baseless allegations seeking to deflect blame for that conduct, including on the victims, does nothing to support a finding that the sentence imposed was manifestly excessive.

Respondent’s submissions

83. The respondent outlined the deliberate, planned and sophisticated nature of the applicant’s offending which occurred over a period of years. Given the nature of the offending, and its objective seriousness, outlined above at [17]-[28], the Crown submits, and as much was accepted by counsel for the applicant, that a substantial custodial sentence was inevitable.

84. The Crown pointed to the difference in the sentence imposed in 2024, as to the 2022 sentence, submitting that the applicant’s mental health and its impact on his moral culpability were clearly given significant weight on resentence. The Crown says that the sentencing judge did not in any way use the 2022 sentence as a starting point and applied the 2024 sentencing Court’s more favourable findings with principle, as part of the broad range of matters that bear upon the appropriate sentence.

85. The Crown submits that the applicant’s inclusion of comparative cases mentioned above at [80] is of little assistance to the Court given as previously noted the necessary information in many of those cases is absent. Had the requisite information been included the Crown observed that a complaint of manifest excess is not a matter of data analysis given sentencing is a process of instinctive synthesis of relevant factors: GE v R [2025] NSWCCA 168 at [53] (Adamson JA, Ward P and Weinstein J agreeing). The Crown notes that appropriate assistance was given by counsel for the applicant to the sentencing judge in supplying a schedule of sentences imposed for other matters, which were overtly referred to in the 2024 sentence judgement. The Crown says the aggregate sentence imposed was well within the discretionary range available to the sentencing judge, and in fact reflected substantial leniency being afforded to the applicant. For these reasons, the Crown says ground 1 should be dismissed.

Determination

86. There is no substance to this ground. The applicant engaged in a course of dishonest conduct defrauding the victims of significant amounts of money. He spun a web of lies and deceit to keep getting more money from the victims in order to fuel his gambling addiction, as was found by the sentencing judge.

87. The sentencing judge properly took into account the subjective case of the applicant, including his mental health issues. Her Honour undertook the sentencing exercise in a thorough and orthodox way.

88. Her Honour also considered the comparative cases she was referred to. As her Honour pointed out, the sentence is not a mathematical comparison by way of similar factors, but a synthesis of many features. Her Honour noted the differences in the sums defrauded, the number of victims and reparations paid to name a few.

89. I do not consider that there could be a legitimate complaint about the sentence imposed. It is certainly not of a length where it is outside the range of sentences appropriate for the criminality engaged in by the applicant so that it could be concluded that her Honour must have erred.

90. Ground 1 has not been made out.

Ground 2

Applicant’s submissions

91. The applicant’s submissions going to ground 2 are less extensive than ground 1. He submits that there should have been, and should be, full concurrency between the sentence imposed on him the subject of this appeal, and the sentence he was serving for driving whilst disqualified while on remand for the index offending.

92. The applicant submits that concurrency would make a significant difference to his family, especially his children as it would mean his release before Christmas and would allow him to spend the holidays with them.

Respondent’s submissions

93. The Crown submits that at no point during the proceedings for the 2024 sentencing was the sentencing judge asked to further backdate the commencement date to allow any further concurrence with a period of time the applicant had spent in custody for unrelated traffic offending. In Shortland v R at [5], it was accepted by the Crown that error had been made in not taking into account a 17-day ‘orphan period’ of custody between 1 March to 17 March. The Crown notes that at the hearing for the 2024 sentence, counsel for the applicant adopted the findings of this Court in the first appeal as to the start date. This was subsequently accepted by the sentencing judge. It was common ground below that the sentence should commence on 31 May 2021. The Crown says no appealable error was made and ground 2 should therefore be dismissed.

94. In any event, the Crown notes that a proper analysis of the custodial records indicates that the applicant was separately serving a period of custody for two other driving whilst disqualified offences by way of ICO when he came into custody for these matters. That ICO was revoked, and he was to serve 7 months and 24 days from 18 March 2021 to 10 November 2021. In practical terms, there was a substantial degree of concurrency for the driving offences and the start date selected for these offences.

Determination

95. I accept the Crown submissions.

96. It was the position of all the parties below that the appropriate start date for these offences was 31 May 2021. Ordinarily a party is bound by the conduct of their counsel below: R v Birks (1990) 19 NSWLR 677 at 683 and 685. This applies to applications for leave to appeal against sentence as well as conviction appeals: Khoury v R [2011] NSWCCA 118 at [104]. I see no reason for the applicant to be able to depart from the position his counsel took in the 2024 sentence hearing.

97. I would not interfere with the sentencing judge’s discretion in setting the start date in any event absent demonstrable error. For the reasons the Crown has explained, there is some benefit to the applicant with the choice of 31 May 2021 as the start date and no error has been established. That is because there was a degree of concurrency with the time the applicant was serving for the ICO that had been revoked.

98. Ground 2 has not been made out.

Orders

99. I would propose the following orders:

100. Extend the time for the filing of the Notice of Appeal to 18 August 2025;

101. Grant leave to appeal against sentence;

102. Dismiss the appeal.

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