Karl SULEMAN v R [2009] NSWCCA 70

New South Wales Court of Criminal Appeal

CITATION: Karl SULEMAN v R [2009] NSWCCA 70 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 09/12/2008

JUDGMENT DATE: 20 March 2009

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Hislop J at 54

DECISION: Refer to paragraph 53.

CATCHWORDS: Criminal Law - Sentencing - Factor in aggravation: Position of trust - Discount for plea of guilty - Application of totality principle.

LEGISLATION CITED: Crimes Act 1900 - ss 178BB, 300(2) Crimes (Sentencing Procedure) Act - s 21A(2)(k)

CATEGORY: Principal judgment

R v MAK and MSK [2006] NSWCCA 381; 167 A Crim R 159 R v MAK [2005] NSWCCA 369 CASES CITED : R v Martin [2005] NSWCCA 190 R v Wickham [2004] NSWCCA 194 R v Johnson [2005] NSWCCA 186 R v Fordham (1997) 98 A Crim R 359

PARTIES: Karl Suleman v Regina

FILE NUMBER(S): CCA 2007/2777

COUNSEL: N Adams - Crown In person - Applicant

SOLICITORS: Commonwealth DPP - Crown In person - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0175

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 24/01/2007

IN THE COURT OF CRIMINAL APPEAL 2007/2777

McCLELLAN CJ at CL HOWIE J HISLOP J

FRIDAY 20 MARCH 2009 Karl SULEMAN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court by Nield DCJ (the Judge) for a number of offences of dishonesty arising from investments made in a company of which the applicant was the principal and which he controlled. The applicant is unrepresented before this Court but has filed both written submissions in support of his appeal and written submissions in answer to the submissions filed by the Crown. He is a highly intelligent and articulate person, which is, no doubt, why he was able to lure a number of persons in the community into making investments into the company that ultimately failed, leaving most of the investors without the return of their money. 3 The indictment to which the applicant pleaded guilty contained 26 counts. Fifteen of the counts were for offences contrary to s 178BB of the Crimes Act 1900, being offences of making a false statement for which the maximum penalty prescribed is imprisonment for 5 years. Eleven of the counts were for offences contrary to s 300(2) of the Crimes Act 1900, being offences of using a false instrument, for which the maximum penalty prescribed is imprisonment for 10 years. As a result of his pleas of guilty the Judge sentenced the applicant to a total sentence of 7 years 4 months from 1 May 2006 with an overall non-parole period of 5 years 6 months. The applicant is eligible to be released to parole on 1 November 2011. Facts 4 There was an agreed statement of facts placed before his Honour. The facts as recited by the Judge take up 15 pages of the remarks on sentence. It is unnecessary for the determination of the application to detail them to the same degree. I will summarise them as briefly as possible. Most of the offences involved the same criminal conduct but against different victims. In effect the applicant induced, sometimes by fraudulent documents, members of the public to invest in a company that he ran, Karl Suleman Enterprises Pty Limited ("KSE"). This company was incorporated in 1999 to take over the applicant's highly successful business in the collection of supermarket trolleys. 5 From April 2000 until July 2001 the applicant sought and accepted investments in this company. There was a Financial Investment Agreement setting out the terms of the investment that was to be for a number of years, variously between three and fifteen. The result of the agreement was that the investor would be guaranteed a return on the investment by fortnightly payments from the income of the trolley collection business. In relation to one investor, the applicant induced the investment by false documents he had manufactured indicating the existence of contracts between large supermarket stores and KSE for the collection of trolleys. These false documents gave rise to the charges under s 300(2). 6 Count 1 on the indictment related to false statements made to Soldoz Pty Limited ("Soldoz") in April 2000 in relation to an investment made by the company with KSE. In effect the applicant falsely stated that the investment made by Soldoz would be repaid from the income received by KSE from two specific trolley collection agreements in which KSE was involved with two supermarkets in Queensland. However those agreements did not exist and, therefore, any return made to Soldoz would not come from income derived by KSE from those sources. Soldoz's investment agreement was actually fulfilled by KSE but from funds obtained from other investments to which other charges related. 7 Count 2 related to an investment made in KSE by the Billington Family Trust ("the Trust") in April 2000 as a result of false statements made by the applicant. As in Count 1 the false statements related to specific agreements purportedly existing between KSE and 14 specified trolley services agreements with various supermarkets. Those agreements did not exist and, therefore, any returns made to the Trust would not be derived from the income of those agreements as the Trust believed. In fact the agreement made with the Trust was fulfilled, money being paid from funds obtained from other investment agreements. Counts 16 to 26 related to false instruments prepared by the applicant to induce the Trust to enter into the investment agreement and purporting to be the agreements between KSE and the specified supermarkets. 8 Counts 3 to 15 related to investment agreements between KSE and various investors made between April 2000 and July 2001. The false statement in each case was that the particular investor would receive a return of a specified amount each fortnight. However, the applicant was using these investments to fulfil the agreements with Soldoz and the Trust. Some returns were made initially but ultimately KSE failed and the agreements were not fulfilled. As a result of these agreements KSE was to make returns totalling over $137,000 per fortnight but was receiving an average net profit per fortnight of less than $8,000. 9 As a result of the investment agreements comprised in all the counts on the indictment KSE received investments totalling $3,185,000. As a result of the agreements investors, excluding Soldoz and the Trust, lost a total of $828,915. Subjective matters 10 The applicant was born on 16 April 1961. He was, therefore, 46 years of age at the date of sentence. He had no relevant criminal record except that on 15 April 2004 he was sentenced by Berman DCJ for dishonesty offences to a prison term of 21 months with a non-parole period of 12 months. The sentences dated from 5 March 2004 and the applicant was released to parole on 4 March 2005. Those offences arose in a period between December 2000 and October 2001. They involved false statements and associated forgeries made by the applicant for the purchase of luxury items including prestige motor vehicles and a yacht. It was shortly before his release to parole from that sentence that he was charged with the current matters. He was then on bail for 14 months before being returned to custody after he pleaded guilty to the matters the subject of this application. 11 There was nothing in the applicant's background of relevance. He came to Australia with his family in 1976. He was educated to high school leaving standard. He married in 1988 and had two children. His marriage ended with the failure of his company. He thereafter had limited contact with his children. The applicant was treated by a psychiatrist for depression between July 2002 and May 2003. There were no relevant psychiatric or mental health issues to be addressed by the Judge. The psychiatrist assessed the applicant's likelihood of further offending as low. Grounds of appeal 12 The applicant raised the following grounds of appeal;