R v Sappideen [2018] NSWDC 238

District Court New South Wales

Medium Neutral Citation: R v Sappideen [2018] NSWDC 238 Hearing dates: 02 February 2018 Date of orders: 02 February 2018 Decision date: 02 February 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Full time custodial sentence of 12 years imposed with a non-parole period of 8 years. See [34]. Catchwords: SENTENCING — Offences – Dishonestly obtain financial advantage by deception SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences SENTENCING — Penalties — Imprisonment Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahyadi v The Queen (2007) 168 A Crim R 41 R v XX (2009) 195 A Crim R 38 Johnson v The Queen (2004) ALJR 616 Cowling v R [2015] NSWCCA 213 R v Qutami (2001) 127 A Crim R 369 Category: Sentence Parties: The Crown Ishan Seenar Sappideen Representation: Mr I Lloyd QC (Counsel for the Offender)

Ms P Smith (Crown Advocate) File Number(s): 2014/96392; 2014/351208; 2015/177272; 2015/213082

Judgment 1. Ishan Sappideen defrauded his friends of about $4.6 million of which $3.6 million approximately remains missing and there is no evidence at all as to where it has gone or what he did with it. He is 37 years of age, and as Mr Lloyd QC accurately summarised his offending in submissions, he was a big noter who showed false trappings of wealth to people and befriended them, got them to invest large amounts of money and then told lies as to why their investments could not be repaid. 2. Some of the offences before the court today were committed while he was on parole and some were committed while he was on bail having been arrested for the earlier offences for which he stands for sentence today. When I say "on parole", I refer to the fact that on 8 July 2005 His Honour Judge Bell imposed a sentence of eight years imprisonment with a five year and six months non-parole period to date from 12 May 2004 for a series of fraudulent offences, mostly of much less serious amounts of money than involved in the present case. At that time Bell DCJ said "At the outset I stress that it is difficult to fully appreciate this young man's confident presentation and his ability to express himself without actually seeing him. His skills in communication and presentation are of an order that would be the envy of many members of the legal procession" 1. His Honour went on to say, "His conduct involved the presentation of himself as a person of importance. He utilised that presentation to obtain cash from his victims. The cash he obtained was in large measure spent by maintaining a lavish lifestyle. He then fraudulently dealt with funds by seeking to take them form the accounts of some of his victims and depositing them into account of other victims. His conduct raised much false expectation of profit in his victims, and that expectation was not only not realised but they lost their cash as well". … The offender is an intelligent, articulate and well presented young man. His manner of speech is both engaging and persuasive." 1. The sentence that Bell DCJ imposed was reduced by 20% to take account of the utilitarian value of pleas of guilty. 2. Having been released on parole on 11 November 2009, his parole was to expire on 11 May 2012, and as Mr Lloyd QC put it, it was not until the last few months of his parole period that he commenced the series of offences which lead to him appearing today. As optimistically as Mr Lloyd could put it was that he had been able to get by for about almost two years on parole without offending. 3. He appears today having pleaded guilty to numerous offences under s 192E(1)(b) of the Crimes Act 1900 of obtaining a benefit by deception. There are 11 principal counts and a number of counts to be taken into account on a Form 1. The maximum penalty for each count is ten years imprisonment with no standard non-parole period. The Form 1 matters will be taken into account in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters, by increasing the sentence where appropriate to take account of the need for personal deterrence. I take into account the two statements of the Chief Justice, properly referred to by the Crown in submissions, namely that it would be wrong to suggest that the additional penalty should be small, and sometimes it will be more substantial when Form 1 matters are taken into account. 4. He has been in custody since 28 November 2014 and Mr Lloyd concedes that a lengthy term of imprisonment is mandated and it is unnecessary to consider any alternative forms of punishment. I must of course take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and I do so. 5. He was arrested initially on 31 March 2014 and granted bail. He was arrested on a second occasion on 28 November 2014 and has been in custody since that time. 6. The agreed facts upon which the sentencing proceeds are set out in a 74 page document which is a very comprehensive summary of the offending but, as Mr Lloyd concedes, remarks on sentence should necessarily contain only a summary of the facts rather than a repetition of the facts and he is content to a certain extent with the outline of the offending summarised in the Crown's written submissions. 7. In short, the offender obtained substantial sums of money from 20 victims purporting that he was going to invest that money on their behalf in sophisticated investment opportunities with an extraordinarily large guaranteed return and he did this by persuading victims through his false and misleading representations and conduct, putting himself forward as highly educated, able to access funds in large quantities, the owner of multiple pieces of real estate, an experienced financial trader, investor and businessman having been employed by well-known financial organisations and being advised by various expert professionals in their own fields. This deceit caused the victims to believe that he was capable and experienced in the field of investment and lead them to believe that he was genuine. 8. The victims were all known to him by either holding employment within his supposed companies or businesses or through an evolved friendship. The aim of the fraud was that he would offer an investment to the victims based on their personal situations, tell them that it was an investment that he had been offered by well-known financial institutions and it was a one‑off opportunity, and to prove the supposed genuineness of the investment he provided an algorithm to victims as to how the investment would make large sums of money and gave them financial documents to indicate that he was an investor who was receiving very large returns. To further bolster the confidence of the victims he said he would match the amount of money that they were going to invest, and once they agreed to invest they were directed to deposit their moneys into his accounts. To deceive the victims that their investment was growing in value he sent emails from various financial organisations and experts that reflected maturing investments at very high returns. Further, he initiated emails that purported to be from accountants who would raise an issue of a tax fee to be paid on the investment set by the Australian Taxation Office, and once the victims believed it was time to withdraw their investment funds the offender initiated many delaying tactics, including fabricating communications that purported to represent his lawyer and financial advisor. He never intended to invest their moneys and the investments did not exist. 9. He clothed himself with the apparent respectability of employment by Platinum Asset Management, a large and well known fund manager operating in the public space and he asserted that he was a portfolio manager with them and held a Bachelor of Science with honours from the University of Sydney, Master of Laws and a Master of Science from New York University, an MBA from NCA and a PHD from the University of New South Wales. They were all false. He also said that he was employed by Goldman Sachs, and that was also false. He boasted about his wealth and access to funds which he used to encourage and deceive investors. The same modus operandi had been utilised in the offences committed in 2001 to 2003 which were dealt with by Judge Bell. He established a number of bank accounts in 2009, 2010 and 2013. He represented to his victims that he owned or he was purchasing several valuable pieces of real estate, including in Wallaroy Road, Woollahra, Macquarie Street, Sydney, Golden Sheaf Hotel in Double Bay, Glenview Street, Paddington, Sutherland Street, Paddington, Victoria Avenue, Bellevue Hill, Whale Beach Road at Palm Beach and Esther Street at Surry Hills, and these were judged as a symbol of the wealth created by the offender but again this was all false and he never owned any of those properties. 10. A condition of his parole was that he must not engage in any activity, paid or unpaid, involving the control of money or assets of other people or organisations and the offences that were committed while on parole were clearly in breach of that condition. A condition of his bail imposed on 31 March 2014 was that he must not engage in any paid or unpaid activity involving the control of money or assets of other people or organisations. 11. I will summarise briefly the amounts involved in relation to each victim and indicate the matters dealt with on indictment, the matter taken into account on a Form1 and whether the offence was committed on conditional liberty.