District Court New South Wales Medium Neutral Citation: R v Fineff [2023] NSWDC 108 Hearing dates: 20 January 2023 & 29 March 2023 Date of orders: 21 April 2023 Decision date: 21 April 2023 Jurisdiction: Criminal Before: O'Brien AM DCJ Decision: See para 279 Catchwords: SENTENCE- Multiple offences of dishonestly obtaining a financial advantage by deception - 12 victims – total fraud $3,355,026.20 over 3.5 years - early plea of guilty - senior financial advisor in a position of trust – relevant matters in assessing the objective seriousness of fraud offences - rolled up counts/multiple criminal acts – relevance of gambling addiction/disorder - impact on victims - impact of other mental health conditions – no prior criminal history – online gambling and the need for review of incentives provided to gamblers –significant steps towards rehabilitation including engaging in gambling reform – voluntary disclosure of offending and assistance to authorities – totality – comparable cases – special circumstances Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Ahmad v R [2021] NSWCCA 30 Bugmy v R (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 DS v R; DM v R [2022] NSWCCA 156 Elias v The Queen (2013) 248 CLR Hili v The Queen (2010) 242 CLR 520 Johnson v R [2017] NSWCCA 53 McLaren v R [2021] NSWCCA 12 Miller v R [2014] NSWCCA 34 Nakhl v R (Cth) [2020] NSWCCA 201 Osman v R [2020] NSWCCA 78 Paterson v R [2021] NSWCCA 273 R v Dawson [2022] NSWSC 1632 R v Engert (1995) 84 A Crim R 67 R v Ellis (1986) 6 NSWLR 603 R v Fidow [2004] NSWCCA 172 R v Gentz [1999] NSWCCA 285 R v Grossi (2008) 183 A Crim R 15 R v Henry (1999) 46 NSWLR 346 R v Palu [2002] NSWCCA 381 R v Smith [2000] NSWCCA 140 Signato v The Queen (1998) 194 CLR 656 Tepania v R [2018] NSWCCA 247 Valentine v R [2007] NSWCCA 23 Category: Sentence Parties: Office of the Director of Public Prosecutions Gavin Daniel Fineff Representation: Solicitor: Mr R Murray (for the Director of Public Prosecutions) Counsel: Mr P Kondich (for the offender) Solicitors: Duffy Law Group (for the offender) File Number(s): 2021/00128389 Publication restriction: Nil JUDGMENT Introduction 1. Gavin Daniel Fineff is 44 years old. He is married and has two young children. In his employment as a financial advisor he had the world at his feet. That was before he committed serious offences of dishonesty for which a sentence must be imposed today. 2. The offences for which he is to be sentenced are 12 counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900, each of which carry a maximum penalty of 10 years imprisonment. There is no standard non-parole period. He offended against 12 individual victims who had trusted him with their savings and investments. His crimes involved frauds of significant sums of money ranging between $60,000 and $745,000 and occurred in the period October 2016 to March 2020. The total amount of his individual frauds is $3,355,026.20. 3. The offender's pleas of guilty were entered in the Downing Centre Local Court on 1 September 2022, and he is entitled to a 25% discount on what would otherwise be appropriate sentences to reflect the utilitarian value of his pleas. Following a detention application by the Crown, which was not opposed, he was remanded into custody on 13 October 2022, and his sentence will be backdated to commence on that date. 4. As with all sentencing it is necessary for me to assess the objective seriousness of each offence for which a penalty is to be imposed. I am required to do this by reference to the maximum penalties prescribed by the Parliament, the facts and circumstances of the offending, relevant common law principles and the Crimes (Sentencing Procedure) Act. As observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10], "Assessing the objective seriousness of a crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances of its commission undertaken with the benefit of judicial experience. Reasonable minds may differ as to the conclusion". 5. I am required to impose sentences that are proportionate to the gravity of the offending and in doing so to have regard to their factual circumstances and the subjective features of the offender. This means amongst other things, that sentencing is not and cannot be a matter of precise calculation. 6. I must also have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. Those purposes are adequate punishment, general and specific deterrence, the protection of the community, the rehabilitation of the offender, the need to make the offender accountable for his conduct and to denounce it, and the need to recognise the harm done to the victims and the community. 7. Once all the relevant factors have been considered I am to undertake an instinctive synthesis. That is, I must make a value judgment as to what is an appropriate sentence having regard to all the factors of the case including the offender's subjective circumstances. As a result, there is no such thing as a single correct sentence. As emphasised by the High Court in Elias v The Queen (2013) 248 CLR 483 at [27]: "….the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion". Agreed Facts 1. A statement of agreed facts was provided to the court, and it is upon the basis of that document that the offender will be sentenced. The document is some 38 pages in length, and I do not propose to recite it in full. Rather I will seek to summarise it. By virtue of the nature of the offending the facts are, even in summary form, necessarily detailed and somewhat complicated. It is however important to recount much of that detail as it is critical in my assessment of the objective seriousness of each of the 12 charges before the court. Background 1. Sentinel Management Pty Ltd ("Sentinel") is a financial planning and investment business located in the Sydney CBD. The owner and Managing Director of Sentinel is Justin Hooper. 2. In 2010, the offender commenced employment with the company as a "para-planner". He occupied that role for 3 years and then progressed to become a financial planner. The offender eventually became a senior financial planner. During his employment he completed a Masters Degree in Financial Planning and was awarded a Certificate of Financial Planning. 3. In July 2019, the offender's salary package was $160,000 p.a. plus performance bonuses. He often achieved bonuses of around $15,000. At that time he managed 120 clients and was responsible for investing their funds. 4. Financial planners at Sentinel were only authorised to provide financial advice regarding a limited number of investments and could not provide advice for investments outside this scope. The offender was integral in standardising these advice processes. This was to ensure that advice given to clients by financial planners was consistent. 5. Sentinel never approved investment in individual company shares, nor did it advise on individual share purchases. 6. In mid-2014, Mr Hooper informed the offender that he would like him to be a shareholder of Sentinel and would assist him financially with the purchase of the shares. 7. In December 2014, Mr Hooper proposed terms for the offender to purchase a 10% share of Sentinel, with an option to purchase a further 10% if a performance objective was achieved. The purchase was complicated and subject to various restrictions. The process was lengthy and took several years to be finalised. The shareholding eventually offered to the offender was reduced to 5%. During those discussions, the offender's ability to raise the funds was spoken about and the offender told Mr Hooper he was not able to raise the funds. The shareholding eventually offered to the offender by Mr Hooper was 5% and Mr Hooper agreed to lend the offender 80% of the share purchase price. 8. On 27 June 2019, Mr Hooper and the offender signed an agreement whereby the offender purchased 5% of Sentinel for $280,000 which Mr Hooper lent him as vendor finance. On 13 December 2019, the offender made an initial repayment of 20%, approximately $60,000, and Mr Hooper financed the remaining 80% as detailed in their agreement. 9. From December 2019, the offender was a 5% shareholder in Sentinel and dividends were offset against the loan provided to purchase the shares. Overview of the offending 1. Between 25 October 2016 and 5 March 2020, the offender received $3,355,026.20 in personal loans from twelve victims. 2. The offender approached each of the twelve victims at various points between October 2016 and March 2020 with a proposal which involved them advancing a personal loan to the offender to allow him to purchase Sentinel, Surf Lakes Holdings Ltd (Surf Lakes) or QBiotics Group Ltd (QBiotics) shares. In each instance, the offender contacted the victims either through email, text message or phone. He would often indicate that the share and loan transactions were a good deal which promised strong monetary return at a high interest rate. He told them bank loans would take too long to clear. 3. Each of the personal loans the offender received from the victims was dishonestly obtained. They were not repaid, the funds were not used as represented, and the funds were predominantly used by the offender for gambling without the knowledge of the victims. Most of the loan agreements did not state a specific purpose and were simply loans at large to the offender. 4. The offender's dealings with each of the victims was outside his usual role as a financial advisor. The offender told the victims that the loans were offered outside his role at Sentinel, and he was dealing with them in a personal capacity. The victims dealt with the offender because he was their financial advisor and they trusted him to act in their best interest. 5. Eleven victims who were clients of the offender at Sentinel advanced loans to him having been told he needed the funds to purchase shares in Sentinel. This was untrue. While the offender had arranged to purchase a shareholding in Sentinel, other than the sum of $60,000 paid by him on 13 December 2019, the purchase was fully funded through vendor finance. The funds obtained from the victims were not spent in the way the offender represented they would be. 6. QBiotics is an Australian life-sciences company which specialises in the treatments of solid tumours and chronic wounds in animals and humans. It is a public company but is not listed on any stock exchange. It is possible to purchase shares in QBiotics. 7. Between May 2017 and March 2020, the offender introduced some of his Sentinel clients to QBiotics as an investment opportunity. It occurred outside the sanctioned client meetings he held as part of his role at Sentinel. In all the emails he sent to the clients he wrote that the QBiotics opportunity was not related to Sentinel or his role there. He sent these emails from his personal email account. 8. The offender offered interest rates on the loans of between 3% and 7% p.a. In the last 6 months of the offending period the loans had higher interest rates of up to 30%. 9. The offender recommended QBiotics shares to eight victims and told them he had special access to parcels of shares. The offender also obtained loan funds from the victims for the specific purpose of him purchasing shares in QBiotics. This was said to be intended to provide his clients with comfort and security. The funds loaned to the offender were not spent by him in the way he had represented they would be. 10. Surf Lakes is an Australian unlisted public company established on 1 July 2016. The head office is located on the Gold Coast. It is possible to purchase shares in Surf Lakes and currently there are over 200 shareholders and over 350 million shares on issue. One of the offender's victims, Phillip Heggie, took up an opportunity to invest in Surf Lakes through his Super Fund. This was at the suggestion of the offender. I will detail the circumstances of this later in the judgment. The Criminal Conduct of the Offender 1. For the sake of convenience I will deal with each of the victims in turn. Sequence 1- JOYCE WILLIAMS 1. The victim Joyce Williams was born in 1934. She was 85 years old in 2020. In around 2012, she was introduced to the offender by her daughter. He was her daughter's financial advisor and later became her financial advisor. 2. Over the next 8 years, the offender and Ms Williams became friends. They communicated mainly on the phone but sometimes used email. The victim had met the offender's family and he would deal with people on her behalf. The offender purchased an iPad for the victim so she could keep up with technology. 3. When the victim first started using the offender as her financial advisor he invested $361,000 of her money into Macquarie Bank. The victim received a return from the investment. 4. Between 25 October 2016 and 1 June 2018, the offender dishonestly obtained $325,000 from the victim by way of personal loans. The offender told the victim the purpose of the personal loans was to purchase Sentinel shares. He did not use the funds to purchase any shares. 5. On 26 October 2016, the victim signed a cheque to the offender for $45,000 from her bank account. She could not recall any details about this cheque other than it being for investments. 6. On 15 May 2017, the victim signed another cheque to the offender for $90,000. The victim did not recall the circumstances surrounding this cheque other than it was for the purchase of Sentinel shares and that arrangements in respect of it were made when the offender visited her home. 7. On 23 November 2017, the offender visited the victim and told her his boss, Justin Hooper, had offered him a partnership at Sentinel. The offender told the victim he had borrowed money from his family and his wife's family but did not quite have enough. The victim asked the offender how much money he needed. He told her $100,000. The victim had the money in her bank account and offered it to the offender as a personal loan. They agreed that the offender would pay back the money to the victim by June 2020 at 5% interest. The victim contacted her bank and arranged to transfer the $100,000 from her investment account into her bank account. 8. On 27 November 2017, the victim provided a cheque for $100,000 to the offender. He attended her home with a contract for the loan which they both signed. After she signed the contract, the victim noticed that the offender had only put 3% interest on the paperwork. The offender told her he would fix the documents and bring them back later. 9. As I have already noted, the offender did not become a shareholder in Sentinel until December 2019 when he obtained a 5% share using a loan from Justin Hooper. 10. On 29 May 2018, the offender told the victim he had been given a further opportunity to purchase Sentinel shares. The victim believed this was in addition to his partnership in the company. She offered to loan the offender $90,000 so he could purchase the shares. The victim contacted her investment bank and transferred the funds to her bank account. 11. On 31 May 2018, the victim provided a cheque for $90,000 to the offender. They agreed the offender would pay back the money by June 2020 at 6.5% interest. The offender provided documents which were a contract for the loan, and they signed the paperwork. The victim noticed the interest rate on the document was 5%. The offender crossed it out and told her he would have the document retyped and bring it back. The victim never received a copy of this document. 12. The total amount advanced to the offender and defrauded from Ms Williams was $325,000. 13. On 22 March 2020, the victim received an email from the offender in which he apologised. He wrote that he had a gambling addiction and had used her money to fund it. 14. Until that date, the victim was not aware of the balance of her investment bank account because it was managed by the offender as her financial advisor, and she did not look at statements. The victim believed that the second and third loans for $100,000 and $90,000 respectively were for the offender to buy Sentinel shares. She would not have loaned the offender the money for any other reason. The offender told her the loans were for that purpose. 15. On 27 March 2020, the victim reported the fraud to police. She commenced a statement to police on 14 April 2020. Due to her age, health and the COVID-19 pandemic, she was unable to complete her statement until 22 June 2020. On 16 March 2021, she completed a second statement. 16. Due to the fraud, the victim was left with limited funds and could not afford to pay her rent. She was issued an eviction order. The police and her local MP assisted her to stay in her house. Sadly, she passed away from breast cancer in October 2021. Sequence 2 - EUGENE MANSOUR 1. The victim Eugene Mansour was 39 years old in 2021. 2. In October 2018, the victim and his wife, Donna, met the offender through a mutual friend. They were seeking financial advice at the time and in early 2019, became clients of the offender. The victim met with the offender on two occasions. The first was in December 2019 to discuss an investment opportunity and the second was a social occasion. 3. Between 23 December 2019 and 13 February 2020, the offender dishonestly obtained $90,000 from the victim. The offender told the victim the purpose of the loans was to purchase Sentinel and QBiotics shares. He did not use the funds to purchase shares. 4. On 24 December 2019, the victim received a message from the offender asking whether he was interested in a short-term loan to assist in his purchase of Sentinel shares. After an exchange of messages during which the offender misrepresented the situation, the victim and his wife agreed to loan the offender $50,000 to purchase Sentinel shares. 5. On 20 January 2020, the victim made a bank transfer from his joint account to the offender's bank account. He and his wife signed an agreement for this loan. The loan was to be repaid on 4 March 2020 with interest of $2110 and interest of 35% p.a. thereafter if not paid. 6. On 21 January 2020, these funds were received into the offender's bank account. The offender did not use the $50,000 to purchase Sentinel shares. 7. About a month later the offender proposed a similar loan of $40,000 for a 2-week period. This was to be repaid by the end of February. There was a further exchange of messages between the offender and the victim where the offender again misrepresented the situation. He said these funds were to be used in the purchase of QBiotics shares. That was untrue. An agreement was reached, and the victim agreed to advance the funds. 8. On 11 February 2020, the offender sent an email to the victim confirming the loan agreement and on 12 February 2020, the victim transferred $40,000 from his bank account to the offender's bank account. The loan was to be repaid on 21 February 2020 with interest of $1,500 and 40% p.a. interest thereafter if not paid. 9. When the loan repayments became due the victim contacted the offender. The offender made excuses as to why he had not repaid the victim but assured him the funds were coming. 10. On 11 March 2020, the offender sent the victim an email acknowledging the loan monies were due and wrote that an interest repayment of 40% p.a. would be paid by him. 11. The offender did not use the $40,000 to purchase QBiotics shares. 12. Later in March 2020, the offender sent the victim an email in which he apologised and admitted to gambling the money away. The victim thought the $50,000 loan was for the offender to buy into Sentinel and this formed loan security in his mind. The victim would not have loaned the offender money for a purpose other than what the offender represented. 13. The victim believed the $40,000 loan was for the offender to convert shares from Surf Lakes shares to the purchase of QBiotics shares. Had the victim known it was for any other purpose he would not have loaned the money to the offender. 14. The victim has not been repaid any part of the $90,000 he loaned the offender. Sequence 4 – GREG GIBBONS 1. The victim Greg Gibbons was 60 years old in 2020. In March or April 2014, he and his wife met with the offender and Justin Hooper for the purpose of exploring the engagement of Sentinel as their financial advisors. 2. The victim and his wife signed up with Sentinel and the offender was assigned as their financial planner. Initially there was a discovery phase for their financial goals and plans for retirement. Part of the process involved the offender being able to see all their financial information. 3. In June 2018, the offender asked the victim to invest in QBiotics. After discussing the investment with the offender, the victim agreed to do so. The offender secured the stock and the victim agreed to share the profits from the transaction in the future. 4. Between 9 December 2019 and 12 December 2019, the offender dishonestly obtained $60,000 from the victim. The offender told the victim the purpose of the loans was to purchase Sentinel shares. He did not use the funds to purchase any shares. 5. On 10 December 2019, the offender asked the victim if he would like a 2-month investment opportunity. This involved the victim loaning the offender $60,000 which the offender would pay back with interest. The offender told the victim it would help him finance purchase of part of the Sentinel business. The offender told the victim he would finance his part of the loan by selling his Surf Lakes shares. The victim understood the loan was short-term because the offender expected to receive funds from the Surf Lakes sales. He agreed to loan the offender $60,000. 6. On 11 December 2019, the victim transferred $60,000 from his bank account to the offender's bank account. The victim retained a copy of the loan agreement, which did not contain any specific permitted purpose for the funds. The loan repayment was due on 11 February 2020. On 12 December 2019, the offender sent an email to the victim confirming he had received the funds. 7. On 3 February 2020, the victim received a note from the offender in which he told them he was on track to repay the loan on 11 February 2020. The victim sent the offender his bank account details for the offender to transfer the funds into. 8. On 21 February 2020, the offender sent an apology note to the victim to say there had been a glitch in the sale of his shares in Surf Lake. On 10 March 2020, the victim received an email from the offender in which he wrote there had been a further delay in the sale of his shares and in repaying the loan. The offender offered to offset the future projected profits for QBiotics against the loan if they would agree to dissolve the loan agreement. The victim was uncomfortable with this option. 9. On 13 March 2020, the offender sent the victim a note containing the recent off market sale price of QBiotics shares. On the same day, the victim's wife sent the offender an email asking about the loan repayment. 10. On 16 March 2020, the offender advised the victim he was unwell and off from work pending medical tests. 11. On 22 March 2020, the offender sent the victim an email apologising, explaining he had a gambling problem and had lost the money he had been loaned by him. On 29 April 2021, the victim made a statement to police. Sequence 5 – JULIA VAN DER VEER 1. The victim Julia Van Der Veer was 37 years old in 2021. 2. In September 2016, the victim and her husband met the offender at Sentinel and engaged him as their financial planner. 3. Between 31 January 2020 and 8 February 2020, the offender dishonestly obtained $240,000 from the victim. The offender told the victim the purpose of the loans was to purchase Sentinel shares. He did not use the funds to purchase any shares. 4. On 1 February 2020, the offender approached the victim by text message and asked for a loan of $170,000 for seven weeks at 35% interest. He said the purpose was for him to increase his shares in Sentinel and that he was offering this opportunity to the victim and her husband because he regarded them as friends. He said the loan would be repaid by the sale of other shares he owned. 5. The victim and her husband agreed to the loan and sent the offender an email which attached the signed loan document he had sent them. The signed loan document did not have a permitted purpose for the use of the funds. 6. On 3 February 2020, the offender sent the victim an email providing his bank account details and asked for a direct bank transfer. The initial loan agreement was a loan of $170,000 for seven weeks with a settlement date of 24 March 2020. 7. On 3 February 2020, the victim transferred $170,000 from her joint offset account to the offender's bank account. 8. On 4 February 2020, the offender sent a text message and asked the victim whether she would like to increase her investment by $70,000 on the same terms as previously agreed. He said the sale of his shares had been delayed but he needed to settle his acquisition of Sentinel shares the following day. The victim replied and told the offender she and her husband were not interested in investing any more money. 9. On 6 February 2020, the victim received a further text message from the offender again asking for an additional $70,000 loan. The victim agreed to provide the money provided it was repaid in 10 days. 10. As of February 2020, the offender was not in discussions nor had approval to purchase additional Sentinel shares. On 7 February 2020, the victim and her husband transferred $70,000 from their bank account to the offender's bank account, meaning a total of $240,000 had been transferred to the offender. 11. On 19 February 2020, the victim contacted the offender about the outstanding settlement on the $70,000 loan. The offender told the victim the transaction was taking longer than anticipated due to stock market volatility. 12. On 21 February 2020, the offender sent a text message to the victim assuring her the funds would arrive the following Wednesday, and that he would then compensate her and her husband for the delay. 13. On 6 March 2020, the offender contacted the victim and told her there was a further delay due to COVID-19. He wrote that 17 March 2020 was now realistic for payment. 14. On 22 March 2020, the offender sent an email to the victim. In that email he apologised and told the victim he had lost all the money through gambling and asked that she either report the matter to police or file new loan agreements. 15. The victim has not been repaid any of the $240,000 loaned to the offender. On 4 May 2021, the victim made a statement to police. Sequence 6 – LORETTO MARDONES 1. The victim Loretto Mardones was 44 years old in 2021. 2. In June 2013, on the advice of the offender, the victim began investing her money with Sentinel. At the time she had $184,768 to invest which she had received following her divorce the previous year. The offender drew up a financial plan covering investments and superannuation. 3. Between 23 December 2019 and 11 January 2020, the offender dishonestly obtained $100,000 from the victim. The offender told the victim the purpose of the loan was to purchase Sentinel shares. He did not use the funds to purchase shares. 4. On 24 December 2019, the offender sent the victim a text message. In that message he offered an investment opportunity and asked the victim for a $100,000 loan. 5. The victim and offender spoke about the loan via text message and in a phone call. On 25 December 2019, the offender sent the victim a confirmation email about the loan. In that email the offender told the victim he would borrow $100,000 for 4 months and pay 30% p.a. interest. The offender told the victim he would sell his own shares to repay the loan. The victim was to receive $10,000 over 4 months. On 31 December 2019, the offender emailed a loan agreement to the victim reflecting the agreement. The loan repayment date was 4 May 2020. 6. To raise the $100,000 for the loan, the offender had to sell the victim's shares which were managed by Sentinel. The share sales took about a week and the offender transferred the monies to the victim. On 6 January 2020, $100,000 was deposited into the victim's bank account. She received an email from the offender that day to confirm his bank details to complete the transfer. 7. On 8 January 2020, the victim signed the loan agreement drawn up by the offender and emailed it to him. The loan agreement did not specify a permitted purpose for the loaned funds. On 9 January 2020, the victim transferred $100,000 from her bank account to the offender's bank account. The payment was completed on 10 January 2020. 8. On 23 January 2020, the victim received an email from the offender in which he said he had paid her $3,000 as part of the total $10,000 interest she was due to receive. She also received $35 to cover the transfer fee she had to pay at the time of the money transfer. 9. On 23 March 2020, the offender sent an email titled 'Important, I'm sorry' to the victim in which he apologised, admitted to a gambling addiction, and said he had lost her money and could not repay the loan. 10. The victim has not been repaid the loan amount of $100,000 or the remaining interest amount. On 4 May 2021, the victim provided a statement to police. Sequence 7 – DOREEN BEEVOR 1. The victim Doreen Beevor was 84 years old in 2020. 2. In around 2004, the victim and her late husband engaged Sentinel to manage their finances. In 2006, the victim's husband suffered a stroke and she became his carer and Power of Attorney. She was the sole contact for dealings with Sentinel. In 2013 the offender called the victim and introduced himself as her new financial advisor. The victim's relationship with Sentinel continued. In 2013 the offender assisted the victim when she placed her husband into a nursing home. He dealt with all the paperwork regarding his admission into the home. 3. Between 1 May 2018 and 13 August 2019, the offender dishonestly obtained $355,000 from the victim in three separate loans. The offender told the victim the purpose of the loans was to invest the money and purchase shares. He did not invest or use the funds to purchase shares. 4. On 2 May 2018, the victim signed a loan agreement with no specific permitted purpose for a personal loan to the offender. She agreed to lend him $95,000 to be repaid on 30 January 2021. The interest rate was 4.5% p.a. payable by 30 June each year. 5. On 16 June 2018, the victim provided a cheque for $95,000 to the offender. He cashed it and received the funds on 18 June 2018. 6. On 6 July 2018, the victim signed a second loan agreement for a personal loan to the offender. She agreed to lend him $150,000. The loan was to be repaid on 30 June 2021. The interest rate was 5.5% p.a. payable by 30 June each year. The unpaid interest rate was 15% p.a. The loan was to continue with the victim's daughter acting as the lender in the event she died. On the same day, the victim provided the offender with a cheque for $150,000. 7. On 11 August 2019, the victim signed a third loan agreement for a personal loan to the offender. She agreed to lend him a further amount of $110,000 to be repaid by 11 August 2020. The interest rate was 7% p.a, with 15% p.a. to apply on outstanding amounts. On the same day, the victim provided a cheque for $110,000 to the offender which he deposited into his bank account on the following day. 8. On 24 March 2020, the victim received a phone call from Justin Hooper. Mr Hooper advised her that she had invested personally with the offender and that he had lost all her money gambling. 9. On 10 April 2020, the victim reported the fraud to police. On 29 April 2020, she provided police with a statement. 10. On 11 April 2020, the victim received an Express Post Letter from Wesley Mission. Inside was a two-page letter from the offender. The letter was dated 9 April 2020. In it the offender apologised and said he had gambled her money away. 11. On each occasion the victim had contact with the offender she understood she was dealing with her financial advisor. Sequence 8 – JOAN RICHARDS 1. The victim Joan Richards was 85 years old in 2021. 2. In 2014, after the death of her husband, the victim was introduced to the offender as a Senior Financial Advisor at Sentinel. 3. Between 4 May 2017 and 6 December 2018, the offender dishonestly obtained $300,000 from the victim in two loans. The offender told the victim the purpose of the loans was to purchase Sentinel shares. He did not invest or use the funds to purchase any shares. The offender did not purchase or own any Sentinel shares until December 2019. 4. In late April 2017, the offender told the victim that he had been offered a small percentage of Sentinel and needed a short personal loan to buy in. The offender told her that it would help his family and he would pay 7% interest p.a. The victim agreed to loan the offender money to purchases shares in Sentinel. He did not do so. 5. On 24 May 2017, the offender sent an email which attached a loan agreement which did not specify any permitted purpose for the loaned funds. In part of the email he wrote "I've provided instruction to my insurer to include you as a beneficiary and I hope to have that documentation by Friday". On 24 May 2017, the loan agreement was signed and dated. The loan repayment date was 28 July 2022. 6. On 30 May 2017, the victim transferred the first payment of $20,000 from her bank account to the offender's account. Between 1 June 2017 and 15 June 2017, she transferred $200,000 to the offender in $20,000 increments. 7. On 22 June 2017, the offender provided the victim with a letter from his insurer. The letter listed the victim as a 16.00% beneficiary in his estate. 8. On 28 November 2018, the offender asked the victim for an additional $100,000 to increase his stake in Sentinel. He told the victim the number of shares he could buy had increased and the additional money would help in setting up his family. The offender also said that it would provide the victim with a good return because term deposits were paying next to nothing. On 30 November 2018, the offender provided the victim with an Addendum to the loan agreement. She signed that agreement. 9. On 30 November 2018, the victim wrote a $100,000 cheque and handed it to the offender. The cheque was made out to him. The transaction was processed on 5 December 2018. 10. On 12 February 2019, the victim received an email from the offender. He said he had repaid $4,420 in interest on the 30 November 2018 loan. 11. On 22 March 2020, the victim received an email from the offender. In that email he apologised and said that he had gambled away the $300,000 she had lent him. The victim then examined her bank account and saw the offender had made $12,670 in interest payments to her between October 2017 and February 2019. 12. Until the victim received the email from the offender on 22 March 2020, she thought the money advanced to the offender had been invested in Sentinel. On 1 June 2021, the victim made a statement to police. Sequence 9 – BARRY SMITH 1. The victim Barry Smith was 77 years old in 2021. 2. In September 2017, the victim and his wife were introduced to the offender by their neighbour Joan Richards. In September and October 2017, the victim met with the offender. He and his wife transferred their financial investments from their existing financial advisor to Sentinel, with the offender being their new financial advisor. 3. Between 2 July 2018 and 24 August 2019, the offender dishonestly obtained $120,000 in two transactions from the victim. The offender told the victim the purpose of the loans was to purchase Sentinel and QBiotics shares. He did not use the funds to purchase shares. 4. On 3 July 2018, the offender telephoned the victim. He said, "I have an investment opportunity to buy shares in an unlisted pharmaceutical group called QBiotics". At the time there was no such investment opportunity. 5. On the same day the offender sent an email to the victim with an overview of the company and asked him to invest $160,000. The money comprised $80,000 for the victim to buy shares in QBiotics at 42 cents per share, which the offender was to purchase on their behalf, along with a loan to the offender of $80,000 to allow him to buy a similar parcel of shares. The victim agreed to lend the offender $80,000 to purchase QBiotics shares and did not lend him the money for any other purpose. 6. On 8 July 2018, the victim and his wife signed a loan agreement which did not specify a permitted purpose for the loaned funds. The loan was to be repaid by 30 June 2023. On 24 July 2018, the offender sent the victim an email providing his bank details. On 25 July 2018, the victim transferred $80,000 from his joint bank account to the offender's bank account. On 30 July 2018, the offender received the funds in his bank account. 7. In early August 2019, the offender contacted the victim and his wife with a second investment opportunity. On 8 August 2019, the offender sent a text message to the victim's wife. In the message the offender asked to borrow $40,000 to allow him to purchase Sentinel shares. He offered interest at 20% p.a for a six-month loan. He said he was making this offer because the victim was a friend. 8. The offender told the victim that there was no pressure to loan him the money. He promised the loan would be repaid before 15 February 2020 at 20% interest p.a. The victim agreed to lend $40,000 to the offender to purchase Sentinel shares. 9. On 15 August 2019, the victim and his wife signed a loan agreement for $40,000 without any specified permitted purpose for the use of the funds. The loan was to be repaid by 15 February 2020. 10. On 23 August 2019, the offender received funds in the sum of $40,000 into his bank account. 11. On 22 March 2020 the offender sent the victim an email in which he apologised. He disclosed that he had gambled away everything he owned and was unable to repay the loan. 12. On 29 June 2020, the victim made a statement to police. The victim and his wife have not been repaid any of the $120,000 loaned to the offender. Sequence 11 – ROGER GRIBBLE 1. The victim Roger Gribble was 72 years old in 2020. 2. Around 2015, the victim and his wife were introduced to the offender at Sentinel. They had been with the firm for many years and their usual financial advisor had retired. The offender began acting as their financial advisor. 3. Between 15 August 2018 and 5 March 2020, the offender dishonestly obtained $405,000 from the victim in five transactions. The offender told the victim the purpose of the loans was to purchase Sentinel and QBiotics shares. He did not use the funds to purchase shares. 4. In early 2018, the offender approached the victim with a proposal to gain access to some privately listed shares with QBiotics. They discussed how an agreement would be handled outside the reporting aspects of their investments with Sentinel. 5. Part of an email the offender sent on 16 August 2018 reads: Hi Roger, I want to point out again that this investment has nothing to do with Sentinel or my role as an adviser. I'm letting you know as a friend. Importantly, if the investment doesn't resonate or you're uncomfortable then no problem at all, just forget it. I can do the investment via a friend in Newcastle but she can't act for 3 weeks but I'd prefer it done much faster (I'm on a strict timeframe). I have what I believe is an incredible opportunity. I already own $150,000 of QBiotics shares (my family own shares as well). I have been carefully developing contacts and because of this now have an option to buy $180,000 of shares – it's basically a very large shareholder who wants spending money (he owns plenty so selling $180,000 is nothing). My uncle who is a Chartered Accountant introduced the company to me a couple of years ago and has recently retired on the back of how good he believes it will be. I had never invested in these things before but after following the company I'm convinced it is unique and exciting …. 1. The victim agreed to loan the offender $100,000. He agreed to supply a further $120,000 for the purchase of QBiotics shares. The victim understood that the offender was also buying QBiotics shares at that time. On 16 August 2018, the offender sent an email to the victim confirming the deal and providing documents for the victim to sign. 2. On 29 August 2018, the victim arranged for a transfer of $119,999.88 from his bank account to the offender's bank account to purchase the shares. Those shares were transferred, and the victim suffered no loss. On 17 September 2018, the offender sent an email to the victim attaching the signed ownership transfer form. 3. On 30 August 2018, the victim transferred the loan sum of $100,000 from his bank account to the offender's bank account on the understanding the offender would use those funds to purchase QBiotics shares. He did not do so. 4. On 13 October 2018, the offender emailed the victim asking whether he was interested in a further purchase. He proposed they each put in $80,000 to purchase QBiotics shares. The agreement was to provide for interest at 4% p.a. and the offender wrote "the price will be higher than the steal we got at 44 cents but I'm still comfortably expecting a 600% return inside 5 years" 5. On 14 October 2018, the victim replied and agreed to the loan. He asked the offender to provide information about his other holdings in case the shares became worthless. The offender provided details about his shares in Surf Lakes. 6. On 18 October 2018, the victim loaned $80,000 to the offender to purchase QBiotics shares by providing a cheque dated 19 October 2018. On the same day the victim signed a loan agreement with no specified permitted purpose for the use of the funds. The loan was to be repaid on 30 June 2021. 7. On 22 November 2018, the offender sent the victim an email advising he had transferred $2,245 to the victim's account for interest owing on this $80,000 loan. 8. On 20 July 2019, the victim loaned $55,000 to the offender and gave him an additional $55,000 to purchase QBiotics shares. 9. On 21 July 2019, the offender sent an email to the victim attaching a QBiotics transfer form, a loan agreement and a sell option agreement. The victim signed the documents on 21 July 2019. The loan was to be repaid on 1 February 2022. 10. On 12 August 2019, the offender sent an email to the victim instructing him to transfer $55,000 from his bank account to the offender's account. On 13 August 2019, the victim did as requested. 11. On 28 January 2020, the victim entered into a further loan agreement with the offender for $80,000 to purchase QBiotics shares. The loan was to be repaid on 1 February 2020. 12. On 1 February 2020, the offender provided his bank details to the victim for the transfer, and on 6 February 2020, the victim transferred $80,000 to the offender to allow him to purchase QBiotics shares. He did not do so. 13. On 7 February 2020 the offender emailed the victim attaching the signed loan and sell option agreements. He confirmed "all funds had been received including by QBiotics for the $120k". This was untrue. 14. On 4 March 2020, the victim entered into a further agreement for a short-term loan of $30,000 for 5 weeks, to purchase QBiotics shares. The loan was to be repaid on 13 April 2020. The victim transferred $30,000 to the offender in two transactions. The first for $25,000 on 3 March 2020 and the second for $5,000 on 4 March 2020. 15. In addition to defrauding Roger Gribble through the purchase of QBiotic shares the offender also did so through his proposed acquisition of Sentinel shares. At some point after 15 August 2018, the offender told the victim he had been given the opportunity to buy shares as part of a "buy in" option at Sentinel. The offender asked the victim for a short term $60,000 loan to facilitate this purchase by him. 16. On 20 November 2019, the victim signed a loan agreement to lend the offender $60,000 at 15% p.a. The loan was for 4 months and to be repaid by 31 March 2020. Between 20 and 22 November 2019, the victim transferred a total of $60,000 to the offender's bank account as part of this loan agreement in three separate bank transfers. 17. On 22 March 2020, the victim received an email from the offender. The subject line was "Important, I'm sorry – RDG". The offender apologised for losing the loan funds and said he had lost it all gambling. 18. On 28 September 2020, the victim made a statement to police. The victim loaned a total of $405,000 to the offender. He has not been repaid and has not received any interest payments. Sequence 13 – PHILIP HEGGIE (HEGGIE SUPER FUND) 1. The victim Philip Heggie was 59 years old in 2021. He had been a client of Sentinel since mid-2016. 2. Between 19 August 2018 and 18 October 2018, the offender dishonestly obtained $220,001.20 from the victim in two transactions. The offender told the victim the purpose of the loans was to purchase QBiotics and Surf Lakes shares. The victim loaned $232,000 to the offender for the purchase of those shares. The offender used $11,998.80 to purchase QBiotics shares. He dishonestly retained the remaining $220,001.20. 3. On 22 August 2018, the offender sent an email outlining the proposal. It was in almost identical terms to the email regarding QBiotic shares he sent to Roger Gribble six days earlier and set out in [134]. The offer to purchase was made to the victim because he was a friend, and while there were slight variations in the detail to the proposal he had put to Mr Gribble, the thrust of it was the same. 4. On 28 August 2018, the victim met with the offender. They spoke about the deal and the offender assured the victim he would see significant returns through ownership of the shares. The offender said words to the effect: "You do not have access to this investment and must complete the purchase of the shares through me. This is because I am a professional financial advisor. I guarantee a minimum return for both your loan and the performance of the shares. This is achieved by a 5% p.a. interest rate payable on the loan and by the provision of an option agreement for you to sell your shares back to me at a rate that would provide you with a 40% return. The loan and option agreement minimises your risk and you receive a good return on your investment. To further minimise your risk I am providing the shares as security against the loan". 1. In the following weeks and after the victim received calls and emails from the offender, the detail of the victim's investment changed, such that he agreed to lend the offender $200,000. This was to enable the offender to purchase $100,000 worth of QBiotics shares and $100,000 of Surf Lakes shares. On 17 September 2018, the victim and offender signed a loan agreement for $200,000 which did not specify a permitted purpose for the funds, however its purpose was clearly understood. At that time they also signed an Option to Sell Agreement. On 19 September 2018, the victim transferred $200,000 from his superannuation fund to the offender's family trust. On 29 September 2018, the offender sent an email to the victim attaching signed copies of the various documents they had signed. 2. On 8 October 2018, the victim sent an email to the offender confirming he had received the shareholdings in Surf Lakes. He asked the offender about the QBiotics shares. The offender responded that he was waiting for further details from his contact. 3. On 12 October 2018, the offender sent a text message to the victim about the final amount of QBiotics shares to be purchased. The seller referred to by the offender in the text message, did not exist. The offender wrote: Hi Phil. The Seller for your $100,000 actually wants to sell $132,000. At 55 cents it's a steal. There is also another Seller for $30,000 at 62 cents. I was thinking, you take the extra $32,000 at 55 cents and I'll take the $30,000 at 62 cents. I'll obviously adjust our paperwork but this gets us a little more without reducing your Macquarie Super balance too much more. Let me know if you'd like to do that. otherwise, I'll proceed only with your $100,000. All good either way, just ask that you respond or call by lunchtime. Cheers. 1. On 13 October 2018, the victim telephoned the offender to discuss the QBiotics purchase. They agreed to purchase extra shares and that this required the victim to loan the offender a further $32,000. The offender agreed to update their documents. 2. On 17 October 2018, the victim transferred the additional loan funds of $32,000 from his superannuation fund to the offender's family trust. On 26 October 2018, the offender sent an email confirming the value of the purchase of the QBiotics shares and the details of the funds transfer account. 3. On 15 November 2018, the victim received a statement of holdings from QBiotics confirming ownership of 240,000 shares. The shares purchased for him by the offender cost $11,998.80. 4. The final loan agreement was sent by the offender to the victim on 2 December 2018. It concerned an interest only loan for $232,000. The interest rate was 7% p.a. to be paid annually. The full loan repayment was due 30 June 2022. The agreement pledged shares that were held as security. From 2 December 2018, the victim was satisfied the arrangement was completed. He believed the funds would be used to purchase shares and would not have loaned the money to the offender if he believed the funds would be used for any other purpose. 5. On 22 March 2020, the victim received an email from the offender. The subject line was "Important, I'm sorry – PNH". In the email the offender apologised to the victim and wrote that he had gambled away his investments and all the money he had borrowed. 6. On 30 April 2021, the victim made a statement to police. Sequence 14 – KATHLEEN POWELL 1. The victim Kathleen Powell was 70 years old in 2021. From April 2015 until March 2020, the offender was the financial advisor for her and her husband. 2. Between November 2018 and February 2020, the victim entered into five loan agreements involving eight separate transactions with the offender. The total amount loaned by the victim and defrauded by the offender was $745,000. The offender told the victim the purpose of the loans was to purchase Sentinel and QBiotics shares. He did not use the funds to purchase any shares. 3. On each occasion, the offender approached the victim with a loan proposal. He instructed her and her husband to fund the investments through a withdrawal from their investment bank account which was part of their portfolio with Sentinel. After they agreed to the proposal, the offender would then advise the victims by email from his Sentinel account to "sell down" certain assets. Afterwards, in his authorised position at Sentinel he transferred the available funds from the victims investment account to her bank account. The victim, at the instruction of the offender, then transferred the funds to his bank account. 4. Between 3 November 2018 and 19 November 2018, the victim agreed to loan the offender money for the purchase of QBiotics shares. On 3 November 2018 the offender sent a text message to the victim and her husband advising that he had a unique investment opportunity he would like to make available to them (as lenders to him) because he liked and trusted them. 5. On 4 November 2018, the offender sent the victim an email outlining the loan details and confirming the loan would be for him to purchase QBiotics shares. On 7 November 2018, the victim agreed to loan the offender $200,000 to purchase shares in QBiotics. They signed a loan agreement which did not have a specified permitted purpose. The loan was to be repaid on 1 November 2022. They also entered a further agreement which granted the victim the option to sell the offender's shares if there was default on the loan. 6. On 9 November 2018, the offender sent an email to the victim from his Sentinel account. He detailed the investments he was able to sell down and confirmed he would transfer $240,000 to the victim's bank account. The victim authorised him to do so. 7. On 12 November 2018, the offender sent the victim a statutory declaration confirming that he would not allow his family trust shareholdings in QBiotics or Surf Lakes to fall below the market value of $200,000 without first repaying the loan. 8. On 17 November 2018, the offender sent the victim an email with his bank account details and confirming that $200,000 had been transferred to them. The email subject line was "QBiotics investment". On 19 November 2018, the victims transferred $200,000 from their bank account to the offender's bank account. On the same day, the offender received that sum. 9. On 4 December 2018, the offender emailed the victim and told her he had been offered access to an additional $100,000 worth of QBiotics shares. He said she could access an additional $50,000 worth of those shares. On 7 December 2018, the offender requested the victim transfer $50,000 to his bank account to purchase more QBiotic shares. On 10 December 2018, the victim signed an addendum to the first loan agreement to add an additional $50,000 to the loan to allow for this additional purchase of QBiotics shares, and on that day transferred $50,000 to the offender's bank account. The offender received $50,000 into his bank account on the same day. 10. On 31 March 2019, the offender sent a text message to the victim offering the opportunity to purchase another bundle of shares in QBiotics. The victim agreed to do so and on 1 April 2019 signed a second variation to the original loan agreement. This agreement was to provide an additional $25,000 to the offender increasing the loan sum to $275,000. This was for the purchase of additional QBiotics shares by the offender. On 1 April 2019, the victims transferred $25,000 from their bank account to the offender's bank account. The offender did not purchase the shares. 11. On 22 May 2019, the offender contacted the victim by text concerning what he represented was the purchase of a further parcel of QBiotics shares for $55,000. The victim replied she was interested and told the offender she would get back to him the following day. On 23 May 2019, the victim agreed to the proposal. The offender advised her via his Sentinel email account to sell down particular assets from her investment account and asked for her authority to do so. He then transferred the available funds to the victim's bank account so as she could then transfer the money to the offender. 12. On 27 May 2019, the victim agreed to enter into a second loan agreement with the offender for this sum of $55,000 to enable him to purchase additional QBiotics shares. They entered a further agreement for the right to sell 100,000 of the offender's QBiotics shares in the event of default. 13. On 29 May 2019, the victim confirmed receipt of the second loan agreement. The loan was to be repaid by 1 May 2023. She agreed to transfer the money the following day. The same day the offender sent an email confirming that $110,000 had been transferred from her investment account to her bank account. On 30 May 2019, the offender told the victim to transfer the money to his account in instalments. On 30 May, 31 May and 3 June 2019, the victim transferred $55,000 to the offender's bank account by instalments of $25,000, $25,0000 and $5,000 respectively. 14. Between June and December 2019, the offender borrowed a further $300,000 in two separate loans from the victim. The loan purpose was for the offender to purchase shares in Sentinel. The offender did not use the money to purchase Sentinel shares. 15. On 29 June 2019, the offender sent a text message to the victim. In it he told of progress with the value of the QBiotics shares and indicated he had an opportunity to purchase shares in Sentinel. He requested a loan of $150,000 for three months to do so. He proposed an interest payment of $10,000 for that period. 16. The victim replied and told the offender her husband wasn't home, but she was confident he would be agreeable to the loan. She wrote that they had not received their QBiotics shareholding confirmation yet. Later that night via text message the victim agreed to proceed with the loan of $150,000 and on the following day the offender emailed a loan agreement which was then signed and returned. The loan was to be repaid by 9 October 2019 with interest. At this time, the offender did not have an option to purchase Sentinel shares. 17. From his Sentinel email account, the offender then sent the victim an email outlining his recommendations for the sale of assets from her investment account. After that sale, the offender transferred the funds to the victim's bank account, before then instructing her to transfer the money to him. In the email, the offender wrote that the funds would be reinvested when they were returned at the end of the year. 18. On 4 July, 5 July and 9 July 2019, the victim transferred $150,000 to the offender in three separate transactions. The transfers were for $25,000, $5,000 and $120,000 respectively. 19. On 26 November 2019, the offender again sent a text message to the victim seeking a further loan of $150,000 for eight weeks to finalise the purchase of shares in Sentinel. He offered interest at the rate of 20% which he rounded to an amount of $5,000. On the same day, the victim spoke to the offender on the telephone and agreed to the loan. 20. On 27 November 2019, the offender emailed the victim from his Sentinel email account with his recommendations regarding the sale of assets from her investment account. Following those sales he transferred funds to the victim's bank account. On 30 November 2019, the victim entered into a further loan agreement with the offender for this sum of $150,000. The loan was to be repaid on 11 February 2020. On 3 December 2019, the victim transferred $150,000 from her bank account to the offender's bank account. He received the funds that day. 21. On 21 February 2020, the victim entered into another loan agreement with the offender for $100,000 to enable the purchase of QBiotics shares. In respect of this loan, the offender originally approached the victim via text message on 15 February 2020 for a loan of $198,000. He provided a copy of correspondence he said he had received from his contact at QBiotics. When the victim told the offender she would have to check her investment account because she did not think there was sufficient funds to cover that amount, the offender told her the seller would proceed with $100,000. The victim told the offender that because the loan was for such a short period it sounded like a good opportunity. 22. On 17 February 2020, the offender sent the victim an email from his Sentinel account advising her to sell down assets from her investment account. He then transferred those funds to her bank account and on 21 February 2020, the victim transferred $100,000 from her bank account to the offender's bank account. He received the funds that day. 23. On 28 February 2020, via text message, the offender sought a further $15,000 loan which he told the victim was to cover a shortfall in his personal finances. The victim agreed to transfer an additional $15,000 to him and did so on 28 February 2020. By end February 2020 the victim had entered eight separate loan arrangements with the offender, all of which were fraudulent. 24. On 22 March 2020, the offender sent an email to the victim in which he apologised and told her he could not repay the money because he had gambled it away. He wrote that it would be in their best financial interest to renegotiate the loan terms otherwise the chance of recovery would be slim. Until receipt of this email, the victims had no knowledge that the offender had a gambling habit or that he had been using the loan funds to gamble. 25. On 8 July 2020, the victim saw an ABC report which featured the offender's gambling losses. It was then she realised the offender had obtained money from her and her husband under false pretences. 26. The victims have not been repaid any of the $745,000 loaned to the offender and have received a total of $4,873 in interest. 27. On 7 May 2021, the victim made a statement to police. Sequence 16 – LAUREN FULLER 1. The victim Lauren Fuller was 41 years old in 2021. In 2009, the victim met the offender through his wife. His wife was a friend of the victim's mother. 2. Around April 2019, the offender telephoned the victim with a short-term investment opportunity involving a loan of $70,000 at 10% interest. He told the victim it was attractive and an opportunity he would like to take part in, but he did not have the cash. He told the victim he could guarantee a return and he would put together a loan agreement. The loan proceeded and was repaid on the agreed date of 4 June 2019. 3. Between 18 April 2019 and 27 February 2020, the offender dishonestly obtained $395,025 from the victim in four loans. The offender told the victim the purpose of the loans was to purchase Sentinel and QBiotics shares. He did not use the funds to purchase any shares. 4. On a date that the agreed facts do not identify, the victim received an email from the offender. In that email he shared details of an opportunity to purchase shares in QBiotics. He told the victim he already owned shares in the company and had been provided with an additional opportunity to purchase more. The proposal was for the victim to invest $100,000 and lend the offender an additional $100,000 so he could invest. The agreement was for the offender to repay the $100,000 with interest. It included an option to sell the victims shares back to the offender. 5. In subsequent emails, the offender provided a shareholder update and provided paperwork to the victim. On 19 April 2019, the victim entered into a loan agreement with the offender for $100,000 without a specified permitted purpose. The loan was to be repaid on 31 December 2022. 6. On 24 April 2019, the victim transferred $100,000 from her bank account to the offender's bank account. The offender received those funds on the same day. The offender did not use the funds to purchase QBiotics shares. 7. On 17 January 2020, the victim loaned the offender a further $80,000 for the purchase of QBiotics shares. There was no written loan agreement for this transaction. The loan was to be repaid on 20 April 2020. On 17 January 2020, the offender received $80,000 in his bank account from the victim. The offender did not use the funds to purchase QBiotics shares. 8. On 4 June 2019, the offender contacted the victim with a smaller investment opportunity. He explained that his position at Sentinel allowed him exclusive access to trade shares not available to the public. He told the victim he had clients who wanted to sell shares and others who wanted to buy, but sometimes transaction timelines were a problem for clients. The offender proposed to use the victim's money to purchase and hold shares until they could be traded. He said that he would charge a commission, and in most cases he could get a 10% return, which would be better than the interest they were earning on their current home loan account. The loan was to be repaid on 28 February 2022. At this point, the offender did not own or have access to shares at Sentinel. 9. On 20 June 2019, the victim transferred $100,000 to the offender. On 21 June 2019, the offender received those funds. 10. Between 28 June 2019 and 26 February 2020, there were six further transactions in which the victim loaned money to the offender. The total amount loaned was $115,025. The money the offender received from the victim was not repaid. 11. On 14 March 2020, the victim enquired via email about repayments. On 16 March 2020, communications ceased with the offender after she found out through the offender's wife's family that he had come forward with a gambling problem. 12. On 21 March 2020 the offender sent the victim an email in which he apologised. He disclosed that he had gambled away everything he owned and was unable to repay the loan. 13. On 5 May 2021, the victim provided a statement to police. The victim has not been repaid any of the $395,025 she loaned to the offender. Investigation and Arrest Detection of the fraud 1. On 12 February 2020, Justin Hooper received an email from a Mr and Mrs Muirhead who were clients of the offender. The email alleged the offender had provided an investment opportunity to them for a company called Surf Lakes Pty Ltd via text message. They thought this was unusual. 2. As a result of the email, Mr Hooper met with the offender that day at a Neutral Bay hotel. Mr Hooper asked the offender why he sent the text message to the Muirheads, and asked if he was under financial pressure. The following week Mr Hooper and the offender met twice further to discuss what had happened. 3. On 14 March 2020, Mr Hooper received an email from the offender which attached a 5 page handwritten letter. In that letter, the offender admitted to having a gambling addiction and being in debt. He wrote that he had borrowed money from family, friends, and clients which he had lost but did not provide further details. 4. Mr Hooper attempted to telephone the offender who did not answer. Later that day he received two emails from the offender. In the first email, the offender estimated his total debt. The second email attached a spreadsheet which listed the loans the offender owed to Sentinel clients. In the email the offender wrote about the company QBiotics as follows: For the most part it was me wanting to invest in a company that I believe is very unique and hard to access. So, I offered it to people including some clients on the basis I get them access and they lend me some money to invest also. This was the intention and for the most part I did it, but the disease got me, I lost control and ended up losing it all – I became desperate recently and never invested at all. 1. Eventually Mr Hooper spoke to the offender and attended Royal North Shore Hospital to see him. The offender said: I'm sorry. I borrowed money from people to buy shares in QBiotics but the disease got me and I gambled their money away. So I borrowed more to win it back and I won some and then lost it again. Some people bought shares in QBiotics, they all wanted to help me buy some shares too so they lent me money but I lost it all and now I am in huge debt. 1. On 15 March 2020, Mr Hooper met with the offender at a club in Mosman. Mr Jon James, a senior financial advisor and Mr Gary Gill, a forensic accountant were also present. They discussed the letter and the spreadsheet provided by the offender. The offender said he had dealt with people via text and emails from his Hotmail account. He agreed to provide access to his Hotmail account. At the end of the meeting the offender said he was receiving counselling at Wesley Mission. 2. On 16 March 2020, Mr Hooper met with the offender at Wynyard Station. The offender signed a document allowing Sentinel to obtain an image of the offender's work laptop computer. Mr Hooper searched the offender's Sentinel emails and found no communications between the offender and the people named on the spreadsheet relating to loans or shares in QBiotics or Surf Lakes. 3. On 20 March 2020, Sentinel terminated the offender's employment. On the same day, at the request of Sentinel, the offender signed a statement outlining the deals he had made with Sentinel clients. 4. Mr Hooper and each of the victims had no prior knowledge of the offender's gambling and debts until the offender came forward in March 2020. 5. The offender provided Sentinel and the forensic accountant with bank statements from two accounts which included the loan deposits for the victims classified as Sentinel clients. He later provided police with bank statements for all current and closed accounts. Report of the Forensic Accountant 1. Sentinel commissioned Gary Gill to investigate the activities of the offender. Mr Gill interviewed the offender and reviewed documents provided by him, including loan agreements, bank statements, spreadsheets and personal email accounts. He also reviewed the Sentinel work email of the offender. 2. Mr Gill identified 11 victims as Sentinel clients who wished to pursue charges against the offender. Those are all the victims, save for Lauren Fuller, who was not a Sentinel client. 3. On 10 July 2020, Mr Gill submitted his forensic accountants report. He concluded that: a. The offender had entered personal dealings with 18 Sentinel clients involving loans, and the investment by some clients in QBiotics and Surf Lakes. b. The offender's relationships with the clients came about through his role as a financial planner at Sentinel where he was responsible for providing financial advice to them. The offender was able to develop strong personal relationships with these clients, which he maintained quite separately from his professional relationship with them. c. The offender's liability to the clients for personal loans was at least $3,627,000. d. The offender has stated he has a gambling addiction and has lost all the loan funds obtained from the clients. Gambling history of the offender 1. Police made enquiries into the offenders gambling. They revealed he had been a customer of Betfair from 24 March 2010 to 30 May 2020 and his final bet was on 22 February 2020. 2. They also revealed the offender was a customer of Ladbrokes for a period of 21 months from 5 June 2018. This account was closed on 7 March 2020. The offender registered the account under a pseudonym "Gavin Lamb" at the request of Ladbrokes. The total deposits made by the offender with Ladbrokes were $2,208,525.00. The total withdrawals made were $1,450,015.00. The difference between these amounts is $758,510. This represents the offender's loss to Ladbrokes in the relevant period. 3. Police further identified the offender opened an account with Sportsbet/Beteasy on 28 June 2014. The account was closed on 5 October 2018. This is a period of approximately 51 months. The total deposits made by the offender to these betting agencies were $5,514,644.00 and $499,100 respectively. The total withdrawals were $2,353,900.92. The difference between these amounts is $3,659,843.08. This represents the offender's loss to Sportsbet/Beteasy in the relevant period. 4. In addition the offender had been a client of Tabcorp since 27 June 2009. His last bet was on 20 June 2018. The account is blocked. Tabcorp has not provided records to police. Arrest and Admissions of the Offender 1. On 7 May 2021, the offender attended Chatswood Police Station and was arrested. He participated in an electronically recorded interview. That interview is approximately 5.5 hours in length. The offender provided police with a 42-page written statement he had prepared. The statement was read by him during the interview and adopted. He signed each page of the document at the end of the interview. The offender also provided police with a USB containing content which assisted police with their investigation. 2. The contents of the offender's police interview can be summarised as follows: 1. He made clear to the clients that the dealings would be outside his role as a financial planner at Sentinel. He told clients he was dealing with them in his personal capacity. He never saw the dealings as part of Sentinel because he never did anything during business hours in relation to these dealings and always kept them separate from his work at Sentinel including phone calls and emails. 2. He followed the Sentinel "Record of Advice" process where applicable. 3. He used a personal mobile phone in all conversations with the clients. 4. He acknowledged receiving money dishonestly from each of the twelve victims. 5. He repaid the money borrowed from one client in full. 6. All communications were conducted from his personal email account, not the Sentinel email account. 1. The offender provided police with a spreadsheet detailing the funds he received dishonestly from each victim, including tracing guidance for each loan to a date and account number. The amounts indicated by the offender were broadly in accordance with those set out in the agreed facts. 2. Those are the facts upon which the offender is to be sentenced. General principles and objective seriousness 1. The seriousness of fraud offences is informed by a consideration of several factors including the amount of money involved, whether any actual loss was occasioned, the length of time over which the offending occurred, the motive for the crime, the degree of planning and sophistication, and whether there is any accompanying breach of trust. 2. It is also important I bear in mind that sequences 1, 2, 5, 7, 8, 9, 11, 13, 14 and 16 are "rolled up" offences. That is, the offending in those sequences includes multiple fraudulent acts by the offender, but he is to be sentenced for a single sequence representing the total amount defrauded from each of the individual victims. As common-sense dictates, the greater the number of fraudulent transactions contained within a "rolled up" offence, the more objectively serious the offending and the greater the overall level of criminality. Each of the 10 sequences I have identified involved a series of criminal acts within the meaning of s 21A(2)(m) of the Crimes (Sentencing Procedure) Act. This aggravates the objective seriousness of each of them. 3. In sentencing for fraud offences general deterrence is a very important sentencing consideration and meaningful and substantial sentences of imprisonment must be imposed for serious examples of these types of offences. Offending of this type is often difficult to immediately detect and so it was here. The sentence imposed today must send a clear warning to others who may be tempted to act as the offender did, that if they are detected, and come before the courts, then they can expect to serve meaningful custodial sentences. 4. Often, as here, these types of offences involve a grave breach of trust and are only able to be committed because of the close personal relationship that exists between an offender and his or her victim. In respect of most of these victims, the offender had established personal bonds over many years. In some instances he had become close friends with them and their families. His victims let him into their lives, and he seriously abused their generosity, hospitality and trust. 5. The period over which the offending occurred varied between one year and seven months in the cases of Joyce Williams and Joan Richards and eight days in the case of Julia Van der Veer. In total it persisted over approximately three and a half years. It was not isolated or impulsive. Rather, the offending was well-planned, deliberate and sophisticated, involving repeated communications with the victim's both at the time their funds were advanced, and later as the offender sought to reassure them in respect of those investments. I have not regarded this planning as a statutory aggravating feature given that planning is inherent in offending of this type. A further matter to be considered in the assessment of objective seriousness is the fact the offender repeatedly engaged in the preparation of false and/or misleading documents to give apparent legitimacy to his criminal behaviour. 6. The offender was engaged in his employment to manage the investments of his clients and to provide them with advice with a view to maximising their funds. Rather than doing so, he embarked on a sophisticated and long running course of conduct which mismanaged their funds to feed his personal needs, and in doing so significantly diminished their resources. He acted for some of his victims for many years. It is implicit in the relationship between a client and his financial advisor that the advisor will always act with the utmost integrity and probity. In committing these brazen crimes, the offender completely abrogated this responsibility. His breach of trust is, by virtue of the common law, and its statutory equivalent in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act, a significant aggravating feature in each sequence. 7. There is another factor which is important in my assessment of objective seriousness of some of the offending, and which intersects with the offender's breach of trust. Joyce Williams, Doreen Beevor and Joan Richards were all elderly women in their early 80s. Barry Smith, Roger Gribble and Kathleen Powell were aged in their 70s. Meaning no disrespect, these victims were of an age and generation where someone like the offender, would be seen as an impressive young professional they could rely on. This in circumstances where no doubt they had all worked hard throughout their lives to adequately provide for retirement and their family. The level of trust bestowed on the offender was high as was his breach of that trust. The age of these victims (save for Ms Williams, who in October 2021 sadly passed away in very difficult financial circumstances that were caused by the offender) means that it is virtually impossible to envisage them ever recovering the loss they sustained. Their hopes and dreams for the latter part of their lives were seriously impacted by the offender, and these outcomes were foreseeable and indeed predictable. I will return to the issue concerning the impact on the victims shortly. 8. In each sequence the amount of money defrauded was substantial and significant actual financial loss was suffered by each victim. Generally, the greater the sum defrauded, the more serious the offending, however all the factors weighing upon the offending must be taken into account in considering the objective seriousness of each sequence. 9. I am satisfied the motive for the crimes was the offender's addiction to gambling and I propose to deal further with this addiction when considering his subjective case. It is however important to observe from the outset that the fact offences are committed because of a gambling addiction will generally not be regarded as a mitigating circumstance or reduce an offender's moral culpability, particularly where the offending occurs over an extended period. This is because a gambling addiction will not often be connected to the commission of the crime but will merely provide a motive or explanation for its commission and be only indirectly responsible for it: R v Grossi (2008) 183 A Crim R 15. That observation having been made, and as with drug addiction, a gambling addiction may be a factor relevant to the objective criminality of an offence, provided evidence is available which goes to matters such as impulsivity and planning, and the capacity of an offender to exercise judgment: R v Henry (1999) 46 NSWLR 346 at [273]; Johnson v R [2017] NSWCCA 53 per Bathurst CJ at [41]. 10. An issue I have considered in my assessment of the objective seriousness of all the offences, concerns whether the offenders various psychological/mental conditions, which I will shortly more fully detail in outlining his subjective case, mean there is a reduction in his moral culpability and as a result, the objective seriousness of the offences. In DS v R; DM v R [2022] NSWCCA 156 at [63] to [96] the Court, considered the question of whether an assessment of an offender's "moral culpability" was a necessary part of the determination of the objective seriousness of an offence. In doing so it observed that "there is considerable support for the proposition that a causally related mental impairment may reduce the objective seriousness of an offence," but that it will not always do so. The Court referred to the decision of Beech-Jones CJ at CL in Paterson v R [2021] NSWCCA 273 where His Honour described objective seriousness and moral culpability as two separate but related concepts of importance to sentencing. He noted that objective seriousness involves an objective assessment of the seriousness of the crime and matters causally related to it, whereas moral culpability is concerned with an offender's moral blameworthiness for an offence. He went on to reiterate what Johnson J had said in Tepania v R [2018] NSWCCA 247, that in assessing the objective seriousness of an offence regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It is the nature of the impairment, the circumstances of the offence and importantly, the degree of connection between those two aspects which will determine whether an offenders reduced moral culpability (if any) has the effect of reducing the objective seriousness of his or her offence. 11. It was submitted by the offender's counsel that his moral culpability and the objective criminality of the offending were moderated by his gambling addiction and diagnosed personality disorder, both of which are said to be characterised by impulsivity. I do not accept this submission, as the offending was not in my view causally related to these mental conditions. So far as concerns the offender's gambling disorder, and as described in R v Grossi (supra), it provides an explanation for the offending but is no more than indirectly responsible for it. I have reached this conclusion for the following reasons, all of which point in the opposite direction to impulsivity: i. the lengthy period over which the offending occurred; ii. the fact that during this period he continued to operate in a highly responsible position as a financial advisor without any apparent suspicion of wrongdoing by his superiors; iii. the necessary and inherent planning involved; iv. the serious level of ongoing deception in which the offender engaged, and v. the fact the evidence does not allow me to conclude the offender was unable to exercise judgment. On the contrary, he consistently exercised judgment and made targeted deliberate decisions intended to obtain the money of the victims for his own purposes. 1. As I noted at the commencement of this judgment, I must assess the objective seriousness of each sequence for which a sentence must be imposed, and I will now do so, having regard to the principles I have outlined: Sequence 1 – Joyce Williams: this offending occurred over a period of about nineteen months. It involved $325,000 and four loan agreements. In my view this offence falls slightly above the mid-range of objective seriousness for offences of this type. Sequence 2 – Eugene Mansour: this offending occurred over a period of just less than two months. It involved $90,000 and two loan agreements. In my view this offence falls below the mid-range but not at the bottom of the range of objective seriousness for offences of this type. Sequence 4 – Greg Gibbons: this offending occurred over a period of three days. It involved $60,000 and a single loan agreement. In my view this offence falls towards the lower end of the range of objective seriousness for offences of this type. Sequence 5 – Julia Van Der Veer: this offending occurred over a period of nine days. It involved $240,000 and two loan agreements. In my view this offence falls towards the mid-range of objective seriousness for offences of this type. Sequence 6 – Loretto Mardones: this offending occurred over a period of twenty days. It involved $100,000 and a single loan agreement. In my view this offence falls below the mid-range but not at the bottom of the range of objective seriousness for offences of this type. Sequence 7 – Doreen Beevor: this offending occurred over a period of approximately sixteen months. It involved $355,000 and three loan agreements. In my view this offence falls slightly above the mid-range of objective seriousness for offences of this type. Sequence 8 – Joan Richards: this offending occurred over a period of approximately nineteen months. It involved $300,000 and two loan agreements. In my view this offence falls at about the mid-range of objective seriousness for offences of this type. Sequence 9 – Barry Smith: this offending occurred over a period of almost 14 months. It involved $120,000 and two loan agreements. In my view this offence falls below the mid-range of objective seriousness for offences of this type. Sequence 11 – Roger Gribble: this offending occurred over a period of approximately nineteen months. It involved $405,000 and six loan agreements. In my view this offence falls just above the mid-range of objective seriousness for offences of this type. Sequence 13 – Phillip Heggie: this offending occurred over a period of two months. It involved $220,001.20 and two loan agreements. In my view this offence falls towards the mid-range of objective seriousness for offences of this type. Sequence 14 – Kathleen Powell: this offending occurred over a period of approximately 16 months. It involved $745,000 and eight loan agreements. In my view this offence falls well above the mid-range of objective seriousness for offences of this type. Sequence 16 – Lauren Fuller: this offending occurred over a period of approximately ten months. It involved $395,025 and nine loan agreements. In my view this offence falls above the mid-range of objective seriousness for offences of this type. The impact on the victims 1. A sentencing court is always entitled to have regard to the harm done to the victims of crime: Signato v The Queen (1998) 194 CLR 656 at [29], indeed one of the purposes of sentencing is to recognise the harm done to victims: see s 3A(g) of the Crimes (Sentencing Procedure) Act. Included as part of the Crown bundle on sentence were documents titled "Victim Impact Statements" from Sharon Williams the daughter of Joyce Williams, Greg Gibbons, Julia Van Der Veer, Doreen Beevor, Roger Gribble (who read his statement to the court) and Kathleen Powell. No objection was taken to the receipt of them by me, notwithstanding that the relevant provisions of the Crimes (Sentencing Procedure) Act concerning such statements do not extend to the type of offending the subject of these proceedings. In any event, the provisions of the Crimes (Sentencing Procedure) Act which deal with victim impact statements "do not codify and confine the circumstances in which evidence may be received by a sentencing court of the impact of crimes upon a victim": Miller v R [2014] NSWCCA 34 at [156]. Accordingly, and to have proper regard to the effect of the offending on the victims, I have considered the statements provided. 2. All these people, along with those victims who did not prepare a purported "Victim Impact Statement", have suffered considerably because of the offender's criminal behaviour. The statement of Sharon Williams was especially powerful, referring as it does to her late mother's hard work and long struggle to live independently, only to have the offender strip her of her life savings such that she lived the final part of her life in difficult financial circumstances. The other victim impact statements speak variously of the stress, anxiety, embarrassment, betrayal, and loss of security felt by the authors, and the ongoing nature of the harm sustained by them. I have earlier referred in dealing with the objective seriousness of the offending, to the age of several of the victims and their inability to recoup the losses they suffered at the hands of the offender. This impacts upon the harm these victims have suffered. 3. I accept without hesitation that the offender's criminal conduct has had a serious impact upon all the victims and that such impact was entirely foreseeable and indeed predictable. The offender is responsible for all the various harms that have been caused to them. In respect of those victims where I have received what are described as "Victim Impact Statements", I am satisfied beyond reasonable doubt that those prepared by Sharon Williams, Doreen Beevor, Roger Gribble and Kathleen Powell support a finding that the emotional harm and financial loss caused is beyond what one would ordinarily expect in cases of this type and "substantial" within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, and accordingly a statutory aggravating factor. In the matters of Greg Gibbons and Julia Van Der Veer, and those where no statements from the victim have been received, I am satisfied the emotional harm and loss visited upon those victims is of a type one ordinarily expects in cases such as this and so not a statutory aggravating factor. In making this finding in respect of those victims, I do not intend to diminish the harm and emotional pain experienced by them. The serious effect upon all of them will be considered by me as part of the overall instinctive synthesis. In doing so I am mindful the law provides that the attitude of a victim whether it be forgiveness or vengeance cannot be allowed to interfere with the proper exercise of the sentencing discretion: R v Palu [2002] NSWCCA 381 at [37]. The offender's subjective case 1. Tendered in the offender's case were letters of apology both to the victims and the court, a report of Dr Brian Gutkin consultant psychiatrist and psychotherapist dated 10 August 2022, a psychologist report of Prof Stephen Woods dated 16 January 2023, a series of news articles concerning the offender, and a series of character references all of which speak well of him. In addition, the offender gave evidence before me over some hours. I observed him carefully as he did so, and formed the view that he was candid, and generally doing his best to assist me. He also struck me as a person with insight into his predicament and an understanding and acceptance that he must be punished for his criminal behaviour. 2. The psychologist report of Prof Woods provides some considerable detail in respect of the offender's background. He grew up in Narooma on the south coast of New South Wales and is the eldest of three children born to his parent's union. He continues to enjoy a close relationship with his mother and siblings. His father was well-known in the local community and was an accomplished rugby league player. The psychologist report indicates the offender would regularly accompany his father to the local hotel on Saturday afternoons where he was introduced to gambling on racehorses. Dr Gutkin is of the view that the "dynamic for gambling had already developed by the age of 12 or 13". His parents' marriage is reported to have been dysfunctional and characterised by his father's abuse of alcohol and numerous episodes of domestic violence perpetrated by his father to his mother, to which he was exposed. The report of Dr Gutkin refers to "an intense traumatic memory" where the offender witnessed his father strangling his mother, such that the offender believed she would die. Dr Gutkin opines that the offender suffers from complex post-traumatic stress disorder because of these childhood experiences. 3. Prof Woods diagnosed the offender as suffering from a personality disorder with mixed features, but predominantly narcissistic, avoidant and borderline types, features of post-traumatic stress disorder, and a persistent and severe gambling disorder that is now in sustained remission. While I accept the various diagnoses provided by both Dr Gutkin and Prof Woods, and as I earlier found when considering the objective seriousness of the offences, I am not satisfied the evidence allows me to conclude there is a direct causal connection between those conditions and the offending. This finding does not however mean that the offenders diagnosed mental conditions are not relevant as part of the instinctive synthesis. 4. In assessing this aspect I must consider principles concerning the taking of mental health conditions into account on sentence. These principles are well-known and call for "a sensitive discretionary decision" that has regard to the particular circumstances of the case: R v Engert (1995) 84 A Crim R 67. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177-178], the relevant principles were set out by McClellan CJ at CL. He there said (with citations omitted): 177."Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: … They can be summarised in the following manner: • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. • It may reduce or eliminate the significance of specific deterrence. • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: … 178. I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence." 1. I am satisfied the mental conditions from which the offender was suffering at the time of his offending provide some context within which the offending occurred. They are also features of his subjective case to be taken into account. Further, I am satisfied his personality disorder and complex post-traumatic stress disorder mean his moral culpability is slightly moderated, and he is a marginally less appropriate vehicle for general deterrence than might otherwise be the case. Consistent with authority his gambling disorder is in a different category. In my view it does not ameliorate his moral culpability or the need for general deterrence. 2. His parents separated when he was aged approximately 11 years, and the report suggests his father ceased meaningful contact with the family at that time. This resulted in the offender feeling a sense of both relief his mother was no longer exposed to his father's violence, and abandonment by his father. Following his father's departure from the family home, Dr Gutkin reports that the offender developed an intense need to look after his mother and siblings. 3. Mr Kondich has submitted that while the disadvantage and dysfunction of the offender's childhood does not enliven for my consideration the principles enunciated by the High Court in Bugmy v R (2013) 249 CLR 571 so to reduce his moral culpability, these matters nonetheless remain a relevant and important consideration to be given full weight in the sentencing process. I accept his submission and propose to deal with matters concerning the offender's childhood favourably to him as part of the instinctive synthesis. 4. As a young man the offender was a talented rugby league player, and he completed year 11 and part of year 12 at a sports high school in Canberra, where he lived with an aunt. At the time he had ambition to be a professional rugby league player. He left school during year 12 and returned to Narooma where he lived with his mother and worked as a swimming teacher. At the age of 18 he relocated to Newcastle again in pursuit of a professional rugby league career. He spent seven years in Newcastle however injury derailed his sporting ambition. While there he worked at a credit union and completed a TAFE diploma in financial management. 5. In 2004 while residing in Newcastle he met his wife, and they were married in 2006. She is a nurse and continues to be supportive of him. The couple now have two children who are aged nine and seven. Her ongoing support of him is a very positive feature of his subjective case. Unsurprisingly, and entirely because of his own conduct, his absence from his wife and children is a cause of ongoing difficulty for both him and them. 6. In approximately 2007 the offender and his wife came to Sydney and he commenced to study financial planning. In 2010 he obtained employment with Sentinel. He regarded his employer Justin Hooper as a mentor and surrogate father figure, and I am satisfied that at least initially he was hard-working and dedicated to the needs of his clients. His progress at Sentinel continued and in about 2018/2019 he was offered an opportunity to acquire an interest in the company. He is reported to have felt a sense of pride and achievement on receiving this offer, and to have been flattered by the status associated with being a partner in a financial services company. 7. To acquire his initial share in Sentinel the offender borrowed the sum of $90,000 from his mother. His evidence revealed this amount was insufficient to complete the proposed acquisition. He then decided to gamble the money his mother had advanced him in the expectation he would win a sufficient sum to finalise the transaction. As with many gamblers before him, his expectation was not realised, and he lost the money. I am satisfied his decision to gamble the substantial sum given to him by his mother and his subsequent "chasing" of those funds was the start of his slide into the serious criminal conduct which brings him before the court today. It saw the unravelling of what would likely have been a promising and prosperous future. This unravelling included him being declared bankrupt, the loss of his career and most significantly, the inevitability of a lengthy custodial sentence. 8. I have earlier, in reciting the facts set out some details of the offender's gambling history with Betfair, Ladbrokes, Sportsbet/Beteasy and Tabcorp. Most of his gambling was on horse racing and conducted online. The records obtained by police from Ladbrokes and Sportsbet indicate that in the period June 2014 to March 2020, his total loss to those two betting agencies was in an amount of $4,418,353.08. On any view, this is a huge amount of money to have lost gambling, particularly in circumstances where there does not appear to have been any attempt by these betting agencies to verify the source of the funds he was wagering with them. This total amount does not include any amounts lost to either Betfair or Tabcorp, the details of those not being identified in the facts. The offender reported to Prof Woods that when his Tabcorp account was closed in 2018 he was approached within a week by an employee of Ladbrokes who offered to open an account for him in a fictitious name, and to give him a credit facility of between $10,000 to $20,000 to be used for gambling. The exact amount is not clear. In any event the offender quickly lost the money. He also told Prof Woods that about two months later he was contacted by a representative of Beteasy, a company which later became known as Sportsbet. That representative offered to provide credit of $50,000 into an account with the company to enable the offender to gamble. He is reported to have lost that money within 40 minutes, and on the following day a further $50,000 was credited into his account which he again lost within a short period. 9. As the level of his gambling escalated, he was given VIP status and assigned a personal customer service manager. The offender told Prof Woods that in the relevant period, which I have taken to be both prior to and during the period of his offending, he received a total of $3.1 million in incentives from Ladbrokes and Sportsbet. In an article published in the Sydney Morning Herald on 25 October 2020, a copy of which formed part of the material before me, the offender described these incentives as "like a drug dealer handing out free heroin to people." It is hard to argue with the accuracy of that analogy. While there is no doubt the responsibility for the offender's criminal behaviour lies squarely with him, one cannot ignore as a matter of context, that the companies with whom he gambled promoted an environment which provided him not only with the opportunity to do so, but actively encouraged him. To the extent this conduct of providing incentives to VIP customers is typical of the approach taken by gambling companies, then in my opinion, it warrants review, by both the industry itself, and those charged with the responsibility of regulating it. 10. In respect of his bankruptcy I have regard to the letter from his Trustee dated 22 December 2022. It speaks of the co-operation and assistance provided by the offender, which has in turn aided the Trustee in recovering funds for the benefit of the victims. The Trustee estimates that $1,349,072 will be recovered and paid to victims and indicates an amount of $448,174 has already been recovered. The trustee notes the offender's involvement in seeking to recover funds for his bankrupt estate from one of the gambling companies he was betting with at the time of the offending, and while it is far from clear these efforts will be successful, the offender deserves some credit for his attempts. He says the offender was involved and committed to the recovery of funds on behalf of his victims and that in his 25-year insolvency career, "I cannot recall any other debtor as committed and remorseful as Mr Fineff". While the evidence reveals there will be a significant shortfall in the recovery of the total amount the offender defrauded, it is not the case that he has simply walked away from his victims without any effort to reimburse them. These efforts, along with the evidence he gave and the letter he wrote to the victims which formed part of the material tendered in his case, are demonstrative of what I am satisfied is his genuine remorse and contrition. Notwithstanding these efforts, the reality is that the victims will all be substantially out of pocket because of the offender's criminal behaviour. His voluntary disclosure of offending to which I will shortly come, also supports my finding that he is genuinely remorseful. 11. The offender has no prior criminal convictions and prior to the first offence involving Joyce Williams was a person of good character. After his fraudulent receipt of the first amount of money from Ms Williams in the sum of $45,000 he was no longer a first offender and someone of good character, albeit his offending had not yet been discovered: R v Smith [2000] NSWCCA 140. I bear in mind the offender was in a position of trust, on account of his good character and his lack of prior criminal convictions, and that good character assisted him in the commission of the offences by providing him with the opportunity to be appointed to a position of trust: R v Gentz [1999] NSWCCA 285. In addition, offences of this type are frequently committed by persons of good character. In considering this aspect I also have regard to the fact the offending occurred over a significant period. These considerations mean the offenders lack of prior record and good character will be given less weight in the instinctive synthesis than might otherwise be the case. 12. Following his disclosure of his crimes the offender initially sought assistance and crisis counselling at Wesley Mission. At that time he is reported to have been suicidal. On the recommendation of his counsellors, he presented at the Royal North Shore Hospital where he was admitted to the psychiatric unit. Thereafter he was admitted to the South Pacific Private Hospital where he remained for approximately two months and received intensive treatment. 13. After his discharge from the South Pacific Private Hospital and prior to entering custody, he embarked on a lengthy period of rehabilitation. This included him attending over 200 meetings of Gamblers Anonymous; ongoing psychiatric treatment from Dr Gutkin which took place once or twice per week over a period of more than two years; completing a Life Choices Program at Oakdene House Foundation; attendances at conferences concerning gambling reform; media appearances to acknowledge his wrongdoing and tell his story; contributing to parliamentary debate and the development of legislation concerning gambling reform; the making of submissions to both the Australian and UK governments; and embracing Buddhism. 14. I accept he has applied himself diligently to important issues of gambling reform. While this is unlikely to provide any solace to his victims, it is an aspect of his subjective case which I must take into account. As to this, I have had regard to correspondence tendered in the offender's case, from Andrew Wilkie MP dated 6 December 2022. He speaks positively of the assistance provided by the offender in the development of laws aimed at reforming the gambling industry. I have also had regard to correspondence from the CEO of the Alliance for Gambling Reform, Ms Carol Bennett and Rev Tim Costello, a well-known advocate for gambling reform. Both Ms Bennett and Rev Costello refer to the willingness of the offender to take responsibility for his wrongdoing and the hurt he has caused to others and his preparedness to engage with them as a means of warning others of the risks which can, for certain members of the community, be associated with gambling. Rev Costello put it this way, "We at the Alliance for Gambling Reform are much advanced in offering a suite of better policies and public protections that may save many others thanks to Gavin's courage." 15. Since going into custody he has completed the EQUIPS program and has been working. He has also commenced an anti-money laundering course through Charles Sturt University which he hopes to continue during his time in custody. I accept he is committed both to abstinence from gambling and ongoing psychological counselling upon his release from custody, and overall, am satisfied he has excellent prospects of rehabilitation. 16. I have also had the benefit of a Sentencing Assessment Report dated 11 January 2023. It confirms other subjective material put before the court, including the offender's insight into the impact of his offending on the victims both financially and emotionally; the impact on his own family; his demonstrated capacity to engage in interventions and his remorse. He is assessed as a low risk of reoffending and that is a conclusion with which I agree. Assistance to authorities 1. The offender's counsel has submitted that his voluntary disclosure of wrongdoing to police and his co-operation with authorities, warrants a further discrete reduction in penalty in addition to the 25% to which he is entitled to represent the utilitarian value of his plea. This is commonly referred to as an Ellis discount in accordance with the decision in R v Ellis (1986) 6 NSWLR 603, noting that these principles are "now embodied in s 23 of the Crimes (Sentencing Procedure) Act": Ahmad v R [2021] NSWCCA 30 at [24]. 2. Section 23 relevantly provides as follows: 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters— (a) (Repealed) (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (j) (Repealed) (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must— (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason. 1. The terms of the section mean there are certain mandatory considerations in determining if a lesser penalty is to be imposed for assistance to authorities, and if so, the extent of that discount. 2. Here, I note the following: 1. The offender initially cooperated with Mr Hooper and Sentinel including by the preparation of a spreadsheet identifying all the loans he had obtained from Sentinel clients. 2. He then cooperated with and participated in the investigation by the forensic accountant Gary Gill including by the provision of documents including loan agreements, bank statements, spreadsheets, and emails. 3. Prior to attending at the police station to be arrested he prepared a 42-page statement setting out the details of his crimes. 4. He provided police with a USB containing material which assisted them in their investigation. 5. He provided police with a spreadsheet detailing the funds he had dishonestly obtained from each of his victims, including particulars of the dates of loans and various account numbers. 1. In considering the factors within s 23(2) I am satisfied that the offenders assistance was significant and useful. It was also truthful, complete and reliable, especially in circumstances where it was supported by documents, banking records and the like. In addition I am of the view it was extensive and timely, at least after his detection. The benefit to be obtained by the offender is in respect of the penalty to be imposed in this sentencing exercise. He will not suffer harsher custodial conditions because of his assistance, nor will his family be impacted. 2. It is clear in my view that the offender, by his voluntary disclosure, assisted authorities in investigating his criminal behaviour so obviating the need for what would have been a lengthy and complex police investigation. I accept his offending would have been discovered by his victims or Sentinel within a short time of his disclosure. Mr Hooper had been alerted by the Muirheads to unusual activities by the offender, and it is clear that in late 2019 and early 2020 his web of deceit was unravelling, and he was becoming increasingly desperate in his dealings with the victims. Those observations having been made, the imminence of discovery does not disentitle him to some degree of leniency on account of his voluntary disclosure. The extent of any leniency will however be influenced by the likelihood of impending discovery: Valentine v R [2007] NSWCCA 23 at [35]. In my assessment the extent of further leniency should be modest, and in all the circumstances I propose to allow a further discrete discount of 5% to reflect his past assistance. Totality 1. There is no issue the s 5 threshold is crossed and that there is no alternative but for the imposition of a full-time custodial sentence. Considering principles of totality, it is a matter which lends itself well to the imposition of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act, and I propose to proceed in that way. 2. In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] ff, with whom Johnson and Price JJ agreed, set out the relevant principles in respect of totality. In imposing sentence I will seek to give effect to these principles. In brief summary they are: * Whenever a Court sentences an offender for multiple offences, such as is the case here, it is necessary for the judge to ensure that the aggregation of all the sentences is a "just and appropriate measure of the total criminality involved". * The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. The first is that the severity of a sentence is not simply the product of a linear relationship. Severity may increase at a greater rate than an increase in the length of a sentence. The second is the proposition that an extremely long total sentence may be "crushing" upon an offender in the sense that it will induce a feeling of hopelessness and impact adversely on such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, an offender may not be entitled to the element of mercy entailed in adopting such a constraint. * A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is a discount for multiple offending. Comparable cases 1. I was referred by the parties to several decided cases that were said may be of assistance in determining an appropriate sentence to be fixed here. I have considered all the cases to which I was referred bearing in mind the limitations in doing so which the High Court referred to in Hili v The Queen (2010) 242 CLR 520. Courts should seek to promote consistency in sentencing, and in doing so it is generally important for them to have regard to what has been done in other cases and the reasons why. As noted by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (supra) at [303], "A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts". It is crucial to bear firmly in mind that no two cases are identical. This is plainly so when considering fraud offences, where the nature of the offending and the moral culpability of offenders can vary widely as does the range of sentences previously imposed. 2. The consistency in sentencing sought to be achieved is consistency in the application of relevant legal principles. It does not require numerical equivalence. While earlier decided cases provide a yardstick against which to measure the sentence to be imposed in any case, it is important to remember that the sentence ultimately fixed must be individual both to the objective circumstances of the offending and the subjective case of the offender. 3. Mr Kondich for the offender referred me to Nakhl v R (Cth) [2020] NSWCCA 201. That was a case concerning a $5.1 million fraud by a financial services provider. It involved 12 victims, 8 principal counts and 4 counts on a s 16BA schedule. At first instance the District Court judge imposed a sentence comprising a total term of 10 years imprisonment and a non-parole of 6 years. The offender's appeal against the length of the sentence was dismissed. Mr Kondich submitted that Nakhl was a case concerning a similar factual matrix to here but was a more serious example of fraud for several reasons, including that it involved a larger sum of money. He also noted the offender had been provided with only a 12% discount for the pleas of guilty. His ultimate submission was that Nakhl would provide me with some assistance in this sentencing task. During the sentence hearing I suggested to Mr Kondich the principal offences Mr Nakhl faced had a higher maximum penalty than those faced by the offender. That was a mistake. The offending in both Mr Nakhl's case and here involves crimes with a maximum penalty of 10 years imprisonment. 4. Mr Murray for the Crown referred me to McLaren v R [2021] NSWCCA 12. That was a case concerning a fraud of $7.6 million of 15 victims. Mr Murray particularly directed me to paragraphs 83 to 96 of the judgment which set out examples of the sentences imposed for fraud type offences in 13 other cases decided in both this court and the Court of Criminal Appeal. The oldest decision was from 2002, the most recent from 2019. I have considered all these cases in determining the appropriate sentence in this case. The indicative sentences and the appropriate total term 1. As an aggregate sentence is to be imposed it is necessary for me, in accordance with the statutory scheme to note the indicative sentences that I would have imposed had I not determined to proceed in this way. The indicative sentence for each offence is arrived at having regard to the objective seriousness of the offending, all aspects of the offender's subjective case and the need to give effect to the purposes of sentencing generally. The 25% discount to reflect the utilitarian value of the offender's pleas of guilty and the 5% discount for his assistance, making a total of 30% is to be applied to these indicative sentences. 2. The indicative sentences I regard as appropriate are as follows: Sequence 1 – Joyce Williams: a sentence of 3 years and 6 months imprisonment less 30% making an indicative sentence after rounding down of 2 years and 5 months imprisonment. Sequence 2 – Eugene Mansour: a sentence of 18 months imprisonment less 30% making an indicative sentence after rounding down of 12 months imprisonment. Sequence 4 – Greg Gibbons: a sentence of 12 months imprisonment less 30% making an indicative sentence after rounding down of 8 months imprisonment. Sequence 5 – Julia Van Der Veer: a sentence of 3 years imprisonment less 30% making an indicative sentence after rounding down of 2 years and 1 month imprisonment. Sequence 6 – Loretto Mardones: a sentence of 18 months imprisonment less 30% making an indicative sentence after rounding down of 12 months imprisonment. Sequence 7 – Doreen Beevor: a sentence of 3 years and 6 months imprisonment less 30% making an indicative sentence after rounding down of 2 years and 5 months imprisonment. Sequence 8 – Joan Richards: a sentence of 3 years and 3 months imprisonment less 30% making an indicative sentence after rounding down of 2 years and 3 months imprisonment. Sequence 9 – Barry Smith: a sentence of 20 months imprisonment less 30% making an indicative sentence of 14 months imprisonment. Sequence 11 – Roger Gribble: a sentence of 3 years and 9 months imprisonment less 30% making an indicative sentence after rounding down of 2 years and 7 months imprisonment. Sequence 13 – Phillip Heggie: a sentence of 3 years imprisonment less 30% making an indicative sentence after rounding down of 2 years and 1 month imprisonment. Sequence 14 – Kathleen Powell: a sentence of 5 years imprisonment less 30% making an indicative sentence of 3 years and 6 months imprisonment. Sequence 16 – Lauren Fuller: a sentence of 3 years and 9 months imprisonment less 30% making an indicative sentence after rounding down of 2 years and 7 months imprisonment. 1. The total aggregate term of full-time imprisonment I regard as necessary and proportionate is one of 9 years. Special circumstances 1. Mr Kondich has submitted that I would make a finding of special circumstances in favour of the offender to reduce his non parole period below the statutory ratio. What constitutes special circumstances will vary from case to case and is a discretionary finding of fact. A wide variety of matters are capable of amounting to special circumstances and warranting a reduction in what would otherwise be the statutory non-parole period. The primary consideration in such a finding should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence. In determining that period I must avoid counting again features of the offender's subjective case I have taken into account in fixing the total term: R v Fidow [2004] NSWCCA 172 at [18]. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish the offender and act as a deterrent to him and others. 2. Generally, the reform of the offender will often be the purpose in finding special circumstances, but this need not be the only purpose. Here, I am satisfied that the offender's excellent prospects of rehabilitation, the fact this is his first custodial sentence, my view of his need for post-release intervention to complete the gambling rehabilitation he has already undertaken, and his need for ongoing assistance in respect of the various mental health conditions under which he labours, warrant in combination a finding of special circumstances. I have finally concluded that the minimum period of custody that the offender should serve is one of 5 years and 4 months imprisonment. Orders 1. The Orders I make in this matter are as follows: 1. In all matters you are convicted. 2. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act you are sentenced to an aggregate term of imprisonment consisting of a total term of 9 years and a non-parole period of 5 years and 4 months each of which are to commence on 13 October 2022. 3. The indicative sentences are as noted earlier in this judgment. 4. You will be eligible for release on parole on 12 February 2028. 5. Your sentence will expire on 12 October 2031. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2023