Dimitriou v The King - [2025] NSWCCA 18

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dimitriou v R [2025] NSWCCA 18
Hearing dates: 2 October 2024
Decision date: 24 February 2025
Before: Mitchelmore JA at [1];
Basten AJA at [172];
Wright J at [183]
Decision:
(1)    Leave to rely on ground 1 in support of the conviction appeal is refused.
(2)    Grant leave to appeal on grounds 2-5 in support of the conviction appeal.
(3)    Dismiss the conviction appeal.
(4)    Grant leave to appeal against sentence.
(5)    Dismiss the sentence appeal.

Catchwords:
CRIME — fraud — dishonestly cause financial disadvantage by deception — directions as to elements of offence — whether a further mental element applies to financial disadvantage outcome element — where point not raised below
CRIMINAL PROCEDURE — trial — judge alone — character evidence — whether sufficient consideration given to own directions about character evidence — impact of prior good character on likelihood of offending
CRIMINAL PROCEDURE — trial — judge alone — witness evidence — warnings — unreliable evidence — whether trial judge had proper regard to own directions as to reliability of witnesses — where witnesses may have been involved or culpable in offending conduct
CRIME — appeals — appeal against conviction — unreasonable verdict — whether crown proved elements of offence beyond reasonable doubt
CRIME — appeals — appeal against conviction — miscarriage of justice — whether charged conduct described differently in indictment, crown case, and trial judge’s directions — whether applicant “submitted” falsified documents to bank — whether sufficient that applicant caused falsified documents to be submitted to bank
CRIME — appeals — appeal against sentence — taking into account an irrelevant consideration — misapplication of principle — fraud — whether corollary deception and breach of trust relevant
CRIME — appeals — appeal against sentence — misapplication of principle — specific deterrence — whether error in conclusion that specific deterrence not mitigated by prior good character and lack of subsequent offending

Legislation Cited:
Crimes Act 1900 (NSW), ss 4B, 192B, 192D, 192E, 192F, 192G
Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Code Act 1995 (Cth), ss 134.1, 134.2, 135.1
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), s 165

Cases Cited:
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW); Re Robert Burton (a pseudonym) [2021] NSWCCA 87
Baker v R [2023] NSWCCA 262
Barwick v R [2023] NSWCCA 139
Bazouni v R [2021] NSWCCA 256
Cook (a pseudonym) v R [2022] NSWCCA 282
Constantinidis v R; Lazar v R [2022] NSWCCA 4
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Flack v R [2011] NSWCCA 167
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-570; [1985] HCA 43
Hughes v R [2021] NSWCCA 238
McKittrick v R [2014] NSWCCA 128
McMahon v R [2011] NSWCCA 147
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
Rassi v R [2023] NSWCCA 119
R v SKL; R v JY; R v XGL [2019] NSWCCA 43
Salameh v R [2024] NSWCCA 239
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Wade v R [2018] NSWCCA 85

Texts Cited:
P Herzfeld and T Prince, Interpretation (3rd ed, Law Book Co, 2024)

Category: Principal judgment
Parties: George Dimitriou (Applicant)
Rex (Respondent)
Representation:
Counsel:
C Parkin (Applicant)
S Lind (Respondent)
Solicitors:
P Williams and Company Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/116264
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

1 September 2023; 16 February 2024

Before:

David DCJ

File Number(s):

2016/116264

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, George Dimitriou, was convicted of one count of dishonestly causing a financial disadvantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The applicant was a director of Wyse & Young International Pty Ltd, a financial services company. In convicting the applicant in a judge-alone trial, David DCJ found that, between 30 November 2011 and 10 March 2012, the applicant caused false information to be submitted to ANZ Banking Group Pty Ltd (ANZ) in support of a loan application, causing ANZ a financial disadvantage in the amount of $1,867,491.50.

The applicant appealed against his conviction on six grounds:

(1) the trial judge erred in failing to direct herself that she needed to be satisfied beyond reasonable doubt that the applicant intended to cause ANZ a financial disadvantage, or was reckless as to that outcome;

(2) the trial judge erred in failing to have proper regard to directions as to the significance of the applicant’s good character;

(3) the trial judge erred in failing to have proper regard to directions as to the reliability of the evidence of witnesses who may have been involved in the alleged offending or may otherwise want to minimise their own culpability;

(4) the verdict was unreasonable because the Crown failed to prove essential elements beyond reasonable doubt; and

(5) a miscarriage of justice occurred by reason of variance between the indictment, the Crown case, and the trial judge’s directions.

David DCJ imposed a sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months. The applicant appealed against the sentence imposed on three grounds:

(6) the trial judge took into account an irrelevant consideration, being deception other than the operative deception of ANZ charged;

(7) the trial judge took into account an irrelevant consideration or acted on a wrong principle in taking into account a breach of trust against a person other than ANZ as aggravating the offending; and

(8) the trial judge acted on a wrong principle in concluding that the need for specific deterrence was not mitigated by the unlikelihood of the offender reoffending, the offender’s prior good character, and the fact that the offender had not offended since the offence charged.

The Court held (Mitchelmore JA, Basten AJA at [171]-[182] and Wright J at [183] agreeing), dismissing the appeal:

(1) On ground 1: The trial judge did not err in not directing herself that she needed to be satisfied beyond reasonable doubt that the applicant intended to cause ANZ a financial disadvantage, or was reckless as to that outcome. There is no additional mental element in s 192E that accompanies the element of causing the financial disadvantage: at [95]-[97].

He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43; Cook (a pseudonym) v R [2022] NSWCCA 282; Bazouni v R [2021] NSWCCA 256; Flack v R [2011] NSWCCA 167; Hughes v R [2021] NSWCCA 238; Rassi v R [2023] NSWCCA 119, considered.
Duncan v Independent Commission Against Corruption [2016] NSWCA 143; Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW); Re Robert Burton (a pseudonym) [2021] NSWCCA 87, applied.

(2) It does not follow from the legislative history of s 192E or the provisions on which it is modelled that it contains a similar intention requirement as is present in ss 135.1 of the Criminal Code (Cth) given the obvious textual differences between the two provisions: at [101]-[102].

(3) Per Basten AJA: As the making of the false loan application (and thus the incurring of the financial disadvantage) was the sole purpose of the deceptive conduct alleged, if the submission of that application, or causing it to be submitted, was proved then intention as to the consequence of financial disadvantage to ANZ was not in issue: at [175]-[182].

(4) On ground 2: Good character was one of many factors for the trial judge to take into account in determining whether she was satisfied of the applicant’s guilt beyond reasonable doubt. In view of the trial judge’s findings, there was little to be said about the applicant’s good character such that the absence of further reference to it does not ground an error of the nature alleged: at [116]-[117].

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68; Wade v R [2018] NSWCCA 85; AK v Western Australia (2008) 232 CLR 438; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, applied.
Constantinidis v R; Lazar v R [2022] NSWCCA 4, considered.

(4) On ground 3: The trial judge was not required to identify any of the reasons why she overcame the s 165 caution for the short reason that her Honour did not do so. The trial judge relied instead on the significant body of documentary evidence as giving rise to the inference that the applicant provided the false information that was submitted: at [121].

(5) On grounds 4 and 5: The applicant’s argument was premised on a narrow reading of the word “submitting”, seeking to confine it to the physical transmission of the loan application. However, from the commencement of the trial it was clear that the Crown alleged that the applicant caused false information to be submitted to ANZ via a loan broker. Consistently with the case as run by the Crown and understood by the defence, the trial judge posed the question as such: at [127], [130].

(6) The evidence comfortably grounded the inference that the applicant provided the false financial documents, the sale contract coversheets, the letter as to loan purpose, and was the one to suggest backdating the sale contracts: at [144].

(7) The fact that the loan was secured and ANZ could, in the event of default, take possession of the properties, exercise a power o sale and recoup the loan funds, might have meant that its disadvantage was temporary. But a temporary disadvantage is sufficient: at [146].

(8) From the ANZ credit assessment, a causal connection between the false information and the loan was readily apparent. Given the importance of the purpose of the loan in terms of assessing its serviceability, the letter falsely stating that the purpose of the loan was a long-term investment was also, apart from the financial documents, a significant or substantial cause of the financial disadvantage suffered by ANZ: at [149].

Baker v R [2023] NSWCCA 262; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, applied.

(9) On grounds 6 and 7: In assessing the objective seriousness of the offence, the trial judge was required to consider the nature of the applicant’s dishonesty and the nature, extent and sophistication of the deception perpetrated on ANZ over the period averred in the indictment. Those matters inexorably required consideration of the applicant’s related deceptions: at [166].

(10) On ground 8: The decision in Totaan v R [2022] NSWCCA 75 does not support the proposition that a finding that a person is unlikely to reoffend diminishes the importance of specific deterrence. It does not follow from Totaan that the trial judge in the present case fell into error in not making a similar finding to that in Totaan or that her Honour misunderstood specific deterrence or its role within the sentencing discretion: [168]-[169].

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, considered.

JUDGMENT

MITCHELMORE JA: The applicant, George Dimitriou, seeks leave to appeal against his conviction for the offence of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), following a trial by Judge David sitting alone in the District Court at Sydney. On 26 February 2024, the applicant was sentenced to a term of 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months, backdated to 16 February 2024. The applicant also seeks leave to appeal against that sentence.
At the time of the offending, the applicant was a co-director of Wyse & Young International Pty Ltd (Wyse & Young), a financial services company. The indictment averred that between 30 November 2011 and 10 March 2012, the applicant, by deception, dishonestly caused a financial disadvantage to ANZ Banking Group Pty Ltd (ANZ) in the amount of $1,867,491.50.
In finding the offence proved, the trial judge found that the applicant knowingly caused false information to be submitted to ANZ in support of a loan application in the name of Pineview Property Holdings Pty Ltd (Pineview), which was used in the assessment of two loans which were approved and advanced to that company.
The applicant appeals against his conviction on five grounds:

The trial judge erred in law in failing to direct herself that she needed to be satisfied beyond reasonable doubt that the applicant intended to cause ANZ a financial disadvantage, or was reckless as to that possibility, before she could convict. The applicant acknowledged that he required leave to raise this ground pursuant to rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules), as his counsel at trial did not make any complaint about her Honour’s proposed directions regarding the elements of the offence.

The trial judge erred in failing to have proper regard to directions about the significance of the applicant’s good character.

The trial judge erred in failing to have proper regard to directions as to the reliability of evidence given by David Winiata, a Business Banking Manager at ANZ, and by Terri Dawson (formerly Terri Winiata), who was married to Mr Winiata at the time the Pineview loan was submitted and was a residential mortgage broker. The trial judge found that Mr Winiata and Ms Dawson were, or may have been, involved in the preparation of the loan application and implicated in aspects of the deception.

The verdict was unreasonable, in support of which the applicant relied on four particulars:

the Crown failed to establish that the applicant submitted the loan application, being the act of deception alleged in the indictment;

the Crown failed to establish that the applicant engaged in deception, or deception that was causative of a financial disadvantage;

the Crown failed to establish beyond reasonable doubt that the advance of money pursuant to a commercial loan agreement, which was secured by first registered mortgages over properties valued at an amount that exceeded the total loan amount, was a “financial disadvantage”; and

even if a financial disadvantage was proven, it was not shown to have been caused by the applicant’s dishonest deception.

In the alternative to the first particular of ground 4, a miscarriage of justice was occasioned by the variance between the indictment, the case run by the Crown, and the directions given by the trial judge.

The applicant seeks leave to appeal against his sentence on three grounds, two of which were put in the alternative:

The trial judge took into account an irrelevant consideration, namely, deception on the part of the applicant other than the operative deception of ANZ (ground 6).

In the alternative, her Honour took into account an irrelevant consideration, or acted on a wrong principle, in taking into account (in substance) a breach of trust in relation to Susan Huybers, a client of the applicant, as aggravating the offending (ground 7).

The trial judge acted on a wrong principle in concluding that the need for specific deterrence was not mitigated by: (a) the unlikelihood of the applicant reoffending; (b) his prior good character; and (c) the fact that he had not offended since the offence charged (ground 8).

I will first address the trial and the grounds of appeal that relate to the applicant’s conviction before moving to the sentence and the associated grounds of appeal. The grounds of the conviction appeal require me to address in some detail the Crown case and the trial judge’s reasons for concluding that the offence was proved beyond reasonable doubt.

The evidence and the trial judge’s factual findings

References to paragraph numbers below are to the trial judge’s reasons for judgment on verdict.

Susan Huybers and the $500,000 loan to Green Global Constructions Pty Ltd

In September 2011, in the context of his work with Wyse & Young, the applicant was introduced to Susan Huybers through her brother, Neil Arnott (as he was known at the time of the relevant events; he has since changed his surname to “Maklafferdich” and gave evidence under that name). Mr Arnott engaged the services of the applicant to obtain a loan. Ms Huybers agreed to guarantee the loan and to provide security in the form of a second mortgage over her home in Queensland: at [63].
Ms Huybers (who used her maiden name Arnott on some documents) gave evidence in the trial about her personal circumstances at that time, which the trial judge summarised in [64]:

“(1)    She was a divorced mother of two teenage children aged 15 and 17;
(2)   She was receiving fortnightly payments of $2,000 from her ex-husband;
(3)   She was working in the kitchen at a friend’s café, Tassels, earning approx. $400 a week. She had started working there in around early 2010;
(4)   She was living in a house at Wellington Street, Petrie Terrace and renting out a house at 86 Enderley Road, Clayfield [(Enderley Road Property)] to have some more income: ‘I wanted to have enough money to pay my own bills and not have to – because David [her ex-husband] gave me money, but I had to ask him for extra money all the time’ (XN T119.3-7);
(5)   A valuation completed in June 2009 placed its approximate value at $2.1 million.
(6)    The Enderley Road Property had a $400,000 mortgage with NAB which Ms Huybers had taken out to pay legal fees from the family law proceedings (this was her only legal liability at this time);
(7)   She owned a Honda CRV;
(8)    She had only one bank account – with NAB and no savings in that account;
(9)   She had no paid employment between 2000 and 2010;
(10)   She had no formal qualifications.
(11)   She did not know what ASIC was.
(12)   She wanted to have her own catering company and so registered Sandwich Girl as a business about a year prior, as a sole trader (XN TT161-162).”

The extensive documentary evidence in the trial included emails from the applicant to Ms Huybers commencing in September 2011, in which he sought identification and financial information. On 17 September 2011, Ms Huybers emailed the applicant her PAYG Summary (group certificate) from the café for 2010-2011, in response to his request for a notice of assessment. The trial judge found that Ms Huybers’ provision of the group certificate was consistent with her evidence that she did not know what a notice of assessment was: at [75]. In another email to the applicant, Ms Huybers said that she did not earn any money before that time.
On 29 September 2011, Ms Huybers and Mr Arnott flew from Brisbane to Sydney and attended a meeting at the Wyse & Young office in Bella Vista: at [78]. According to Ms Huybers, a number of other persons were present including Gerard Quin (who was introduced as the applicant’s accountant), Mr Winiata (who was introduced as “the ANZ Business Banker”) and Andrew Jetson (who was introduced as the applicant’s offsider and an accountant). Ms Huybers gave evidence that she remembered signing documents in the boardroom that day. She recalled signing a Wyse & Young Appointment Letter and Costs Agreement, and she thought she also signed other documents but did not remember: at [84].
The appointment letter that Ms Huybers recalled signing was addressed to Mr Arnott, Ms Huybers, and three companies. For two of those companies, Green Global Constructions Pty Ltd (Green Global) and Union Steel Pty Ltd (Union Steel), Ms Huybers was identified as the Director. Green Global was a shelf company that Mr Arnott set up in January 2010, while Union Steel was registered on 27 September 2011: at [86]. Ms Huybers signed this document in both her own name and on behalf of Union Steel and Green Global.
ANZ approved a business mortgage loan to Green Global in the amount of $500,000, secured by a second mortgage over Ms Huybers’ Enderley Road Property. On 10 October 2011, the applicant signed a letter on behalf of Ms Huybers directing disbursement of the loan amount, which Ms Huybers said in evidence reflected her wishes for distribution: at [89]. In a letter to Ms Huybers dated 11 October 2011, Mr Winiata confirmed the details of the loan facility and monthly repayment amounts which would be debited from a bank account in the name of Green Global.

The Crown alleged that, some time before 2 December 2011, a further loan application was made in Ms Huybers’ name, comprising a refinance of her existing $400,000 home loan with NAB and an additional $600,000. This loan application was of some factual significance to the subsequent loan application to ANZ that was the basis of the charge against the applicant.

The $1,005,000 ANZ loan to Ms Huybers: refinance of Ms Huybers’ $400,000 NAB loan and a $600,000 facility

Ms Huybers gave evidence that she decided, at her brother’s suggestion, to transfer her $400,000 loan with NAB to ANZ: at [91]. On 3 November 2011, Mr Winiata sent an email to Ms Huybers which stated that he was about to process her home loan refinance “and also set up a facility for further property purchases” and asked her to attend a NAB branch to obtain an updated loan statement. When asked about this email, Ms Huybers said that she had discussed a facility for further property purchases with the applicant but not in any detail: at [109]. There were other emails between Ms Huybers and the applicant in November 2011 in which she variously expressed concern about her brother repaying the $500,000 loan and also asked for advice about how she could make some money.
On 4 November 2011, Ms Huybers emailed the applicant and provided him with the log on details for her NAB account, writing: “because I trust you and b/c you probably know all my finances better than I do anyway”. Ms Huybers said that she sent the applicant this email to progress Mr Winiata’s request of the day before, “except my understanding what it was, was it was just for the $400,000 transfer” (Tcpt 13/06/23 p 578): at [111].
The Crown case was that before 2 December 2011, Ms Dawson, who was a residential mortgage broker, applied for a loan on behalf of Ms Huybers for $1,005,000. Neither the loan application nor the supporting documents that were provided to ANZ at or around the time of that application or upon its approval were in evidence. The Crown did tender a facsimile dated 2 December 2011 from the ANZ Originator Services Unit of ANZ to Ms Dawson, informing Ms Dawson that the loan application was approved subject to a number of conditions, from which it was reasonable to infer that Ms Dawson was the contact on the loan application. Mr Winiata’s evidence was that Ms Dawson was the broker for this loan application because it was a home loan, and as a business banker he could only process business loans.
The indicative loan details in the ANZ approval letter specified that the loan was divided into two parts, a loan of $405,000 and a line of credit for $600,000. The conditions to be satisfied included, relevantly, verification of Ms Huybers’ income and the business and personal tax returns for the last two years. There was no documentary evidence before the trial judge as to what (if any) additional material was provided to ANZ in satisfaction of the stipulated conditions. However, Mr Winiata gave evidence that for Ms Huybers to have received a collective loan of over one million dollars, ANZ would have had to receive “financials, so her personal returns, tax returns, and also company financials as well” (Tcpt 20/06/23 p 814).
Mr Winiata’s evidence was that he received documents by email from the applicant “to be able to send them onto ANZ or a credit process” (Tcpt 20/06/23 p 814-815). In response to a question in chief as to whether he had any specific memory of seeing the documents relied on for this loan, Mr Winiata said (Tcpt 20/06/23 p 816):

“From what I recall, receiving the documents from Mr Dimitriou’s office via email into my ANZ email address, and then I passed those documents across because of obviously the relationship with Ms Huybers — pass them to my wife, Terri, to complete the home loan application.”

When asked if he recalled specific documents, Mr Winiata’s recollection was that he saw “the financials for Susan Huybers and her business account”. When asked what type of “financials”, Mr Winiata said, “Financial statements, tax returns, notice of assessments” (Tcpt 20/06/23 p 817).

Ms Huybers’ evidence was that in December 2011, she was aware that efforts were underway to transfer her NAB debt to ANZ, but she only became aware of the $600,000 loan in 2012: at [126]. In an email to the applicant dated 6 January 2012, copied to Ms Huybers, Mr Winiata stated that settlement of the ANZ loan would take place on 9 January 2012.

The applicant’s interactions with the Rubinos and the lead up to the Pineview loan

In 2009, Frank Rubino was introduced to the applicant through his solicitor, Salvatore Russo. At the time, Frank Rubino’s parents, Alfio and Biagina Rubino (both of whom were deceased by the time of the trial (I will refer to them collectively below as the Rubinos)) were behind in their loans to ANZ in respect of a number of businesses and properties, in the order of approximately $6 million. Three of the properties owned by the Rubinos were relevant to the applicant’s trial:

a property in Calderwood Road, Galston (Calderwood Property), which is where the Rubinos resided;

a property in Pine Valley Road, Galston (Pine Valley Property) which according to Frank Rubino was subdivided from the Calderwood Property (once a single, ten-acre lot); and

a property in Arcadia Road, Arcadia (Arcadia Property), where Frank lived with his wife, Lee (who was deceased by the time of the trial).

The applicant tendered documents in the trial showing that between November 2010 and 9 March 2012, the Rubino family incurred debts to him or businesses associated with him, including the following:

On 10 November 2010, Lee Rubino borrowed $148,944 from the applicant, at an interest rate of 48%, purportedly on the security of a mortgage over the Arcadia Property, which Lee Rubino did not own (the mortgage was witnessed by Alfio Rubino). A document in the form of a loan statement dated 10 May 2012, with the applicant’s personal details on the letterhead and addressed to Lee Rubino and Alfio Rubino, and Rubino Holdings Pty Ltd, indicated that by 10 January 2012 the outstanding amount of the loan was $287,329.40.

On 26 July 2011, Wyse & Young Accounting (described on the letterhead as “A Division of Wyse & Young International”) issued an invoice to “Frank, Anthony and Alfio Rubino, Rubino Holdings Pty Ltd” for $140,800, with the descriptor “Saved debt fee pursuant to the Retainer Agreement dated 17 January 2011”, in respect of the “Rubino Holdings Peter Lane Sale”.

Mr Rubino gave evidence that between July 2011 and March 2012, the applicant was “chasing” him “for all sorts of money” (Tcpt 19/07/23 p 1339).
Following a protracted period of attempted sales and negotiations with ANZ, on 19 December 2011 the Rubinos reached an agreement with ANZ. Frank Rubino gave evidence that his parents agreed with ANZ that by 16 January 2012, they would pay ANZ $1,050,000 in respect of the Pine Valley Property, and $1,650,000 for the Arcadia Property. If they did not pay those amounts, ANZ would repossess and sell both properties.
In late December 2011, Frank Rubino met with the applicant and explained the agreement with ANZ and the need for urgency and suggested that the applicant obtain more details from his solicitor, Mr Russo. Frank Rubino stated that he met with the applicant, who had spoken to Mr Russo, and “they said everything would be alright, ‘We’ll get a short term lender in to finance it, and then we’ll get – maybe further down the track, you know, we’ll try and find some other finance’” (Tcpt 11/07/2023 p 1084).
On 22 December 2011, the applicant sent Mr Winiata an email titled “Thoughts and Deadline 10 January”. In that email, the applicant referred to a conversation with Mr Winiata and wrote, relevantly (I have made some changes to the formatting):

“Security properties,
No debt – will have title on day of 10 January 2012 for [Calderwood Property], value 1,360,000 Place of residence
Income producing investment property with existing tenants. [Pine Valley Property] Discharge debt of 1,050,000 Value 1,390,000 I hold previous valuations
[Arcadia Property] Discharge debt 1,650,000 I hold propell [sic] valuation at 2,595,000, Brett did one at 1,950,000.
Have a deadline to discharge away from ANZ on the 10^th January where as 2,700,000 gets handed over 3 property titles get handed back.
Current Owners. 83 and 80.
Stamp duty will have to be paid as I suggested best they get sold by way of contract of sale.
Or
Neice [sic] at 28 wants Arcadia and Galstone [sic] and the unencumbered prop can be used as security it will have zero debt.
Mum and Dad are not impaired and directorships can be relevant.
The niece can also be a co borrower on the Mortgage but not necessary on title change so as to save duties.
Need your thoughts – we had to sign a confidentiality agreement with ANZ so as not to get into media. …”

In reply to this email, Mr Winiata stated that they would need to act on the loan immediately to meet the 10 January 2012 deadline and asked the applicant to ring him to discuss.
In the early hours of 31 December 2011, the applicant sent another email to Mr Winiata. The applicant reproduced some of the information from his email of 22 December 2011 regarding the loan status and value of the three properties, and proposed a structure whereby both the Pine Valley and Arcadia Properties would be sold “to someone on trust”. In relation to the Pine Valley Property, the applicant wrote: “probably use Susan in a Trust Set up – Susan – can be the private lender the family will pay her the fees for that probs [probably] 20k for her trouble”. The applicant also suggested that a friend of his, Danny Kalischer, be used (also in a “Trust set up”).
The applicant’s intention as expressed in the email was that on settlement, the unencumbered Calderwood Property would be transferred to a trust, and then a refinance could be done to pay back the trustee directors “for the use of [their] money”. The applicant proposed that the moneys to be raised on the refinance would include the moneys needed to repay the short-term loans, but also $200,000 for “my outstanding lend amount” (see [22] above), $28,000 being outstanding “‘fees lender” payable to Mr Kalischer, the return of a 20 per cent deposit if paid by Mr Kalischer on the Arcadia Property, money to cover interest and costs and stamp duty, and “3% of total lend amount split between you and I”. The applicant also relevantly wrote:

“You’ve done loans for Danny and Susan so I can make Sarinda 1 [being a company associated with Mr Kalischer] trustee company and Susan of Green Global the other.
susan has trust already so that’s a bonus-
Danny has his trust as well so that’s a bonus.
Both investments propers – both should be approved swiftly.”

In his reply email, Mr Winiata relevantly stated that he “loved the structure”. He also wrote that he had “everything for Susan” (consistently with the evidence he gave at the trial that he received her financial information for the earlier ANZ loan for $1,005,000) and asked for notices of assessment for Mr Kalischer for 2010 and 2011. Mr Winiata proposed submitting the deals on 1 January, likely through ING “to keep it separate to ANZ”. When the applicant replied at 2.13am, stressing the urgency and that they only had until 9 January 2012 to settle, he also wrote:

“Maybe I can stitch time if we can get at least one done, the Galstone (sic) at $1,050,000 [namely, the Pine Valley Property], and then get them the deposit for arcadia hand it to the bank in good faith – or hold in our solicitors trust, as Sal is still the parents (sic) solicitor and sales contracts are already done.
I suppose with Susans (sic) and Dannys (sic) money and mine we can probably discharge that one at $1,050,000. Leave them [presumably, the Rubinos] on title so as the stamp duty not needed to be paid, so as we say buy the mortgage from ANZ at $1,050,000. We take there (sic) place. Then sell it soon after.
What we then do is put Danny trust and company as the Mortgagor – we then take possession then refinance to buy Arcadia using the unencumbered again as Danny trust.
Just need to Set Arcadia Mate…”

Mr Winiata responded at 8.31am, stating that any loans would need to be residential rather than business loans given both Ms Huybers and Mr Kalischer already had $500,000 business facilities, and that he was happy to put the loans through ANZ. Mr Winiata told the applicant that he needed to know exactly what the applicant wanted to do.
Ms Huybers’ evidence was that the applicant first told her about the Rubinos in about December 2011, telling her that they were good people and he wanted to help them “to not lose all their properties or something” and that she might be able to buy the Arcadia Property and subdivide it as a good way of making money (Tcpt 05/06/23 p 195-197). On 24 December 2011, she flew to Sydney with her children for four or five days. On 31 December 2011 (being the same day on which the applicant and Mr Winiata exchanged the above emails in the early hours of the morning), Ms Huybers was picked up by a car that the applicant arranged and was driven to the Arcadia Property, where she met the applicant and Mr Jetson: at [121]. The applicant, Mr Jetson, and Ms Huybers then travelled to the Galston properties, where the applicant introduced Ms Huybers to Frank Rubino. According to Frank Rubino, the applicant said that Ms Huybers was a “private lender” (Tcpt 11/07/23 p 1084). Ms Huybers said that she and the applicant and Mr Jetson then returned to the applicant’s Bella Vista office, where they had some champagne and talked for a while: at [122].
On 2 January 2012, Ms Huybers had lunch with the applicant and Mr Jetson, during which she recalled some discussion about the Arcadia Property: at [122]. In an email to Mr Jetson dated 3 January 2012, Ms Huybers asked when the applicant and Mr Jetson would have time to talk to her about Mr Arnott (who had made no repayments on the $500,000 loan as at December 2011), and “when you want me to sign anything about buying the Rubino property”. She gave evidence that, at this time, she was interested in buying the Arcadia Property with a view to subdividing and renovating it. In cross-examination, she agreed that she had an intention to lend money at this time for the Arcadia Property “but that [it] would be discussed further. Not that it would just — money would just be borrowed of mine and lent without me knowing” (Tcpt 06/06/23 p 298).
On 6 January 2012, the applicant sent further emails to Mr Winiata about the structure of the proposed borrowings. In one of those emails, which the applicant sent at 12.36pm, he referred to needing to settle the Arcadia Property by 13 January 2012. He suggested that settlement could be expedited using Ms Huybers because she “was already approved and ANZ hold her details already in Resi [residential] and Business”. He also suggested that the sales contract for that Property could be dated back 45 days “so as also it will correlate with Heybers [sic] reasons for surplus investment funds back when you had that one approved”. In a statutory declaration dated 29 November 2011, Ms Huybers had stated that any funds she borrowed “will be used for the purpose of investment property, in order to take advantage of the deflated real estate market and to build a property portfolio”. Her evidence in the trial was that the applicant had rung her while she was at work and told her that she needed to prepare a statutory declaration urgently and have it witnessed, reading out over the phone what it needed to say: at [117].

The Pineview loan application

On 9 January 2012, Pineview was registered with ASIC. Ms Huybers was the sole director: at [129]. Ms Huybers gave evidence that in January 2012, the applicant asked her to be involved in Pineview, that she and the applicant would be the directors, and that she could “make some money” by purchasing and renovating the Arcadia Property (Tcpt 05/06/23 p 209-210).
On 10 January 2012, at 3.44pm, either Mr Winiata or Ms Dawson faxed a loan application to ANZ on behalf of Pineview as trustee for the Pineview Trust to borrow $2,000,720 on the security of first registered mortgages over the Calderwood Property and the Pine Valley Property. The application included an Online Supporting Document Kit under the name “Susan Elizabeth Huybers – Pineview Property Holdings atf Pineview Trust”, together with a number of supporting documents. The application documents were signed by Ms Dawson as the broker, but the evidence of Ms Dawson and Mr Winiata was that Mr Winiata had filled in the information on the forms.
The application was also purportedly signed by Ms Huybers. However, Ms Huybers gave evidence that she had not signed the application. During his evidence, Mr Winiata admitted that he had forged Ms Huybers’ signature in various places on the loan application (Tcpt 22/06/23 p 965). In re-examination, when asked if any person influenced his decision to engage in the forgeries, Mr Winiata said (T 23/06/23 p 983):

“I don’t know how to — so I suppose the only person that influenced to have them is myself, but the consequences around it is, as I mentioned before, the time issue of trying to get this through quickly because, obviously, [the applicant] was pretty adamant to get this through quickly because of the Galston properties being lost, I suppose, in a way, and this investment was going to help that, and as I mentioned, I — yeah that [the applicant] had influenced. I’ve done a lot of stuff with him so I was keen to make it happen pretty quickly.”

Ms Dawson gave evidence that when she signed the application, Ms Huybers’ signature was already on the document, and her husband assured her that he had seen Ms Huybers sign the document: “That was the only reason I signed it” (Tcpt 12/07/23 p 1136). She also referred to Mr Winiata telling her that the application needed to be submitted as soon as possible, “because the client who was a friend of [the applicant’s] was in financial difficulty” (Tcpt 12/07/23 p 1138).
In response to a question in an early part of the form requiring a brief description of the borrower’s purpose for the loan and objective, the application stated:

“Susan has found 2 properties that she wishes to purchase. Using the $600,000 line of credit that has been recently set up, Susan requires further funding to purchase 2 properties in NSW. Both the properties will be purchased in a company name.”

As the trial judge noted at [8], the Crown alleged that this statement of the purpose of the loan was deceptive:

“The application was made on the basis that it was to secure the purchase of 5 Calderwood Road, Galston and 45 Pine Valley Road, Galston. However, the true purpose, on the Crown case, was that the money was borrowed in order to assist the Rubino family, and also to apply the borrowed monies and payment of outstanding fees, apparently owed to [the applicant] and others, by the Rubino family.”

In the section of the loan titled “Personal Statement of Financial Position”, the application recorded Ms Huybers’ gross annual income as $222,096. In relation to Pineview, Ms Huybers was listed as the sole shareholder and director of the company. The form listed the $500,000 ANZ loan to Green Global and the $1,005,000 loan to Ms Huybers (wrongly recorded as $1,050,000). There was also a section titled “Guarantor Checklist”, which listed Ms Huybers as the guarantor and stated that Ms Huybers had attended an interview on 30 November 2011. Ms Huybers gave evidence that she had never met Ms Dawson or had a phone conversation with her: at [131]. Ms Dawson accepted that she had not held an interview with Ms Huybers and that she never met or communicated directly with Ms Huybers: at [276]. This document also stated that Ms Huybers was “self-employed” in construction.
The application attached a number of documents which the Crown alleged contained false information, which the trial judge listed at [6]:

an individual tax return for Ms Huybers for the 2011 financial year;

an ATO notice of assessment for Ms Huybers for the 2011 financial year, which stated that she had a taxable income of $222,085;

a company tax return for Green Global for the 2010 financial year, which stated that its annual income was $852,315;

a company tax return for Green Global for the 2011 financial year, which stated that its annual income was $1,572,781;

financial statements for Green Global for the 2010 and 2011 financial years, which contained the same figures as presented in the company’s tax returns;

a contract for sale of land for the Calderwood Property, dated 7 December 2011 and indicating payment of a deposit of $135,050;

a contract for the sale of land for the Pine Valley Property, dated 7 December 2011 and indicating payment of a deposit of $115,040;

I have set out above Mr Winiata’s evidence that he had received the “financials” relating to Ms Huybers in the context of the previous loan application. Mr Winiata also gave evidence that it was “most likely” that he received the contracts of sale for the Calderwood and Pine Valley Properties by email from the applicant (Tcpt 20/06/23 p 843).

The individual tax return for Ms Huybers for 2011

By way of background, Ms Huybers gave evidence that, during the meeting at the applicant’s office in Bella Vista on 26 September 2011, the applicant offered to do her tax and said that she would get a refund. She understood at the date of the meeting that he was to be her accountant: at [83], [106]. In early November 2011, Ms Huybers forwarded to the applicant her tax return and notice of assessment for the 2009 financial year, which she had received from her former accountant. She had emailed her former accountants to request this document, letting them know that “I have someone new looking after my tax and he needs my last ‘notice of assessment’”: at [104]. That notice of assessment, dated 12 August 2010, stated that Ms Huybers’ taxable income for that financial year was $3,281 and that she was entitled to a credit of $284.00.
On 15 November 2011, Navneet Kaur, of Wyse & Young, sent an email to Ms Huybers attaching draft tax returns for the 2010 and 2011 financial years. Ms Huybers recalled liaising with Ms Kaur about her tax returns because she was going to get a refund: at [97]. The draft return for the 2010 financial year stated that her taxable income was $160. The draft return for the 2011 financial year stated a taxable income of $19,213 (predominantly comprising her earnings from the café). Both returns estimated that Ms Huybers would receive a tax refund. As the trial judge noted at [107], the unchallenged evidence was that these tax returns were never lodged.
The tax return for Ms Huybers for the 2011 financial year that was submitted with the Pineview loan application was dated 20 September 2011 and gave her occupation as “Director – managing” with Green Global. As the Crown observed in its written submissions on the appeal, Ms Huybers was not appointed as a director of Green Global until at least 29 September 2011. This document also stated that Ms Huybers’ gross salary was $189,152, when the income reflected in the draft tax return prepared by Ms Kaur was substantially lower, consistently with what Ms Huybers had indicated about her income (see [45] above). It also referred to Ms Huybers receiving rental income from “86 Enderley Ave, Clayfield” (the correct street name was Enderley Road), when, as the Crown pointed out, Ms Huybers did not rent out the Enderley Road Property during this period (her evidence was that she rented it from mid-2011 to mid-2012). The stated final gross income for Ms Huybers was $222,085, a far larger figure than was set out in the draft notice of assessment that Ms Huybers received from Ms Kaur.
The return identified Mr Quin as the tax agent. He gave evidence in the trial that he became a registered tax agent in about 2006 and started working with the applicant in around July 2011: at [287]. There was no formal employment arrangement in place, and Mr Quin brought his own computer to the office and prepared returns using software that he licensed and which was password-protected: at [291].
Mr Quin could not recall ever communicating with Ms Huybers, and before attending court he checked his invoices and found no reference to her: at [303]. He was shown the 2011 tax return and denied any involvement in preparing it: at [307]. His evidence was that he would not have written “The Manager” in the contact name section of the form, but would always put his name: at [305]. The client reference on the document (“HUYB0001”) was also not consistent with the software he used, but rather with “HandiTax” software that Ms Kaur used: at [306].
The trial judge accepted Mr Quin’s denial of any involvement in preparing the return: at [353]. Her Honour also accepted the evidence of Mr Jetson that he did not believe he saw any individual return of Ms Huybers before March 2012 and denied preparing it: at [352]. Another accountant, Wi (“Kathy”) Jiang, who worked at Wyse & Young between October 2010 and April 2013, gave evidence that she had never seen the document before it was shown to her in 2016, and that Ms Huybers was not her client: at [352].
Ms Huybers gave evidence that she was not aware of this tax return document before 10 January 2012: at [130].
Her Honour found that the document contained false information and was deceptive: at [347], [355].

The ATO Notice of Assessment

The same income figure for Ms Huybers as was stated in the 2011 tax return submitted with the Pineview loan application was repeated in a Notice of Assessment purportedly issued by the Australian Taxation Office (ATO), dated 20 September 2011. John Vuceric, a Senior Information Officer at the ATO, confirmed that he had accessed and searched the ATO system and that no tax return had been lodged on Ms Huybers’ behalf for between 1 July 2009 and 30 June 2013. It followed that the notice of assessment could not have been generated by the ATO: at [358]. Ms Huybers’ evidence was that this document would have come as a surprise to her if she had received it in September 2011: at [359]. The trial judge found that this document was false: at [363].

The Green Global documents: company tax returns for 2010 and 2011, and financial statements for 2010 and 2011

The 2011 tax return for Green Global that was submitted with the Pineview loan application stated that the company’s main activity was “Other House Constructions”. That was not its main activity; indeed, the company did not trade. Nonetheless, the tax return stated an income of $1,572,781 and expenses of $1,199,878, resulting in a profit $372,903. Those figures were reflected in the financial statements for Green Global for the 2011 financial year, which was on the letterhead of “Wyse & Young Accounting”.
Similarly to the 2011 tax return, the 2010 tax return for Green Global stated that the company’s main activity was “Other Residential Building Construction”. The 2010 financial statements listed Ms Huybers as the “Public Officer”, despite her not yet being appointed a director. The company’s stated income for the year was $852,315 and its expenses were $556,667, resulting in a profit $293,648. Those figures were reflected in the financial statements for Green Global for the 2010 financial year, which were also on the letterhead of “Wyse & Young Accounting”.
As the sole director of Green Global, Ms Huybers gave evidence, accepted by the trial judge, that she was not aware of the existence of any of these documents before 10 January 2012: at [365], [373], [383]. Mr Vuceric’s evidence was that the ATO did not receive any tax returns for Green Global between 1 July 2009 and 30 June 2013: at [370]. Mr Quin, whose name was on the two returns as the tax agent, denied having seen these documents before the police showed them to him, and denied having any involvement with Green Global: at [369], [379]. Mr Jetson could not recall when he first became aware of Green Global, but he did not recall seeing any tax returns and he said he did not do tax returns: at [366].
In relation to the financial statements, Mr Jetson agreed that he saw financial statements during his time at Wyse & Young but said that he was not involved in their preparation: at [385]. Ms Jiang gave evidence that she was asked to complete financial statements from time to time, but she had not seen these particular documents before 31 October 2016: at [386]-[387]. Mr Quin denied having any involvement in the preparation of the financial statements, noting that they were on Wyse & Young letterhead and he did not have that on his computer program and was never asked to include it: at [388]. If he had prepared the document, it would have had his name and address on it: at [389].
The trial judge found that each of these four documents contained false information: at [393], [402].

The two contracts for sale

The loan application attached the cover sheets to two contracts for sale, relating respectively to the Calderwood Property and the Pine Valley Property. The contracts nominated the Rubinos as the vendors and Pineview as the purchaser. Both were dated 7 December 2011, which was approximately one month before Pineview was incorporated.
The vendor’s agent was listed as “Apple T Real Estate”. Harjeet Singh, a director of Apple T Real Estate, gave evidence at the trial that he met the applicant in 2010 or 2011 and that he referred clients who wanted refinancing to the applicant. However, he had never had clients by the name of Biagina Rubino or Alfio Rubino; nor did he have any dealings with Pineview. Mr Singh also gave evidence that he had never received deposits for either of the Calderwood Property or the Pine Valley Property, which he confirmed by a search of his trust account for both addresses.
The trial judge found that the two contracts contained false information: at [416]. Her Honour was also left in no doubt that the applicant was responsible for the creation of the contracts, noting that he was the only person who knew Mr Singh and Apple T Real Estate. Her Honour also reached this view having regard to the role of the applicant as “the driving force behind the structure of the loan arrangement”: at [415].

Events after submission of the Pineview loan application

By fax dated 11 January 2012, ANZ acknowledged receipt of the loan application on behalf of Ms Huybers and estimated a response by 13 January 2012. However, it sent a subsequent letter noting that the application had been “transferred over” two files due to the involvement of a company (Pineview), and provided a revised estimated response date of 18 January 2012. On 12 January 2012, Ms Dawson sent a fax to ANZ titled “Urgent Escalation”, requesting: “please escalate this file to be assessed ASAP as settlement date is on Monday 16th January 2012. If I am able to receive an indicative approval by 13th January this will help with extending the settlement date”.
On 13 January 2012, an assessment officer at ANZ sent a fax to Ms Dawson informing her that the loan application was declined. The basis for declining the loan was that the guarantor checklist submitted with the loan had ticked a box that the guarantor was under pressure to provide the guarantee. The assessment officer also raised other issues, including:

“… * Require letter from Accountant confirming that Pinevalley Property Holdings Pty Ltd (sic) does not trade in its own right or as trustee for Pineview Trust and purpose is for longterm property investment, not property construction/ development.
* Income from Green Global Constructions P/L is required to assist with servicing. As a result, Corporate guarantee is provided. Require letter from Director authorising ANZ to take Corporate Guarantee from Green Global Constructions P/L.
* Prior to approval require Solicitors Trust Deed Certification. …”

Mr Winiata sent an email to the applicant, the date of which is not apparent, notifying him that a number of points needed to be completed before a full approval could be issued and asking for this information “over the weekend” (13 January 2012 was a Friday). The information he requested included the matters I have extracted above from the ANZ loan assessor’s fax to Ms Dawson. On 15 January 2012, the applicant forwarded Mr Winiata’s email to Ms Huybers, stating that “Andrew”, presumably Mr Jetson, would prepare the first document (being the letter as to loan purpose), and Andrew would also send her the trust deed. The applicant also wrote, “[w]e will need you to if possible find a solicitor up there tomorrow to assist”.
On the evening of 15 January 2012, the applicant wrote a lengthier email to Ms Huybers which stated:

“…Sal [presumably Mr Russo, the Rubinos’ solicitor] gave me the all clear on the lend for Galston properties – we wrote to the solicitors and advised them that we will settle this first pinevally rd facility.
I will send thru to you that letter I did today, so as it is, the valuations for Pinevalley and Calderwood Rds jointly came in at $2,550,000 -
I will also send you those valuations as soon as David Sends them to me – so we are lending jointly $1,050,000 and the stamp duty, your investment, my Investment and some from Danny together we will be lending thru Defined Properties lnvestment Pty Ltd - Defined Properties Investment also owns currently $3,800,000 worth of asset. I am the director. I will guarantee all investors monies as I always do. In this lend we will hold both titles, both titles will immediately after we receive the titles, have registered mortgages by Defined Properties and caveats in behind by you, I and Danny - defined properties investment will also allow a charge to you and to danny and I for the funds deposited into it for the purpose of this lend. I am preparing those documents over night tonight and the mortgages and caveats, and also So therefore we are all covered two fold.
Upon the purchase of the 2 Galston properties by Pineview Trust (susan sole director and beneficiary and her children and grandchildren jointly) that David has procured, immediately will return the monies together with interest and fees and then ANZ will hold those titles.
Upon discharge of this facility, all extra monies made will be direct debited to your on line saver account.
I will then procure to set the funding for Arcadia, we will then invest and lend the $1,050,000 into that property, The Rubinos will supplement the facility with 550k and they will pay that Stamp duty as Bank discharge is $1,650,000. So we will then hold a 1st Mortgage over Arcadia worth $2,595,000.
I have also with David lodged the facility for this one as well.
Susan all thru the process you will be fully informed.
Furthermore Danny and I will more than likely catch up with you within this week. …”

There are a number of troubling aspects of this communication, which the trial judge observed at [136]. Among other things, the applicant did not join in lending any money to the Rubinos on these transactions. The $1,050,000 investment, assuming it is a reference to the Pine Valley Property (that amount corresponding to the amount the Rubinos owed to ANZ), was not made through Defined Properties Investment, rendering meaningless the applicant’s representation that as the director of that company he was guaranteeing “all investors monies as I always do”. Defined Property Investment also did not give Ms Huybers a charge for any funds she contributed. As the trial judge stated, “[c]ontrary to the email Ms Huybers was not ‘covered two fold’”. Additionally, as the trial judge found, the applicant’s representation to Ms Huybers, that the monies she loaned for the Pine Valley Property would be immediately repaid with interest following the purchase of the two Galston properties by Pineview, did not eventuate: when the loan settled on 9 March 2012, none of the money was used to repay her.
On 16 January 2012, Mr Jetson emailed Ms Huybers, letting her know that the trust deed had been sent to her email address “per instructions from [the applicant]” and asking her to organise signing and return “per his overnight instructions”. Ms Huybers was shown in her evidence a signed copy of a Trust Deed for Pineview Trust, which named Pineview as the trustee and Ms Huybers as the specified beneficiary, and she agreed that she signed the document. She said that she did not understand why she was signing it, but she trusted the applicant (Tcpt 06/06/23 p 297-8). On 17 January 2012, Ms Huybers signed a declaration regarding a corporate guarantee from Green Global (another of the matters that the ANZ loan assessor required), using wording that the applicant gave her over the phone. Ms Huybers gave evidence that she thought the document was “just for, you know, setting things up in the future” (Tcpt 05/06/23 p 213).
On 17 January 2012, $1,050,000 was deposited into an account for “Rubino Holdings Pty Ltd”, comprising a cheque for $480,000 from Serinda Pty Ltd (associated with Danny Kalischer) and a cheque for $570,000 dated 16 January 2012 with Ms Huybers’ name written on the back. The Crown alleged that this totalled the $1,050,000 required to discharge the ANZ mortgage over the Pine Valley Property (consistently with the applicant indicating in his 15 January email to Ms Huybers that this property would be settled first). Frank Rubino gave evidence that he initially thought that Ms Huybers came up with all of the money, although he subsequently found out that Mr Kalischer contributed about half (Tcpt 11/07/23 p 1085, 1090). Frank Rubino also gave evidence that there was no agreement in place at that time regarding repayment of the $1,050,000.
On 15 January 2012, Wyse & Young Accounting issued an invoice to the Rubinos and Frank Rubino for $34,982, with the description “Professional Services Rendered pursuant to our cost agreement for the obtaining of the loan approval of $1,050,000”, described as “3% Loan fee of $1,050,000 + GST”.

Further documents submitted to ANZ for the Pineview loan application

On 1 February 2012, Ms Dawson sent a fax to ANZ in response to the requisitions raised on 13 January 2012. On the cover sheet, Ms Dawson wrote that she had incorrectly completed the guarantor checklist and that Ms Huybers was not under pressure to complete the application. Attached to the fax were copies of property valuations for the two properties dated 12 January 2012, a copy of the trust deed for the Pineview Trust, and a letter dated 12 January 2012 on Wyse & Young letterhead, signed by the applicant. The letter stated:

“We act as Accountants and Tax Agents for Pineview Property Holdings Pty Ltd. We confirm that the above entity does not trade in its own right but acts as Trustee for the Pineview Trust. We can confirm that the purchase of the property in Pine Valley Road, Galston, is a long term property investment and is not for any other construction or development purposes”.

The Crown alleged that this letter also contained false information given the true purpose of the loan, and formed part of the deception: at [423]. The trial judge found that the suggestion in the letter, that the loan was for long term property investment, was deceptive: at [427]. The “true purpose”, as her Honour found in [434], was “to assist the Rubino family and also apply the borrowed funds in payment of the outstanding fees and debts said to be owed by the Rubino family to the accused and others”.

Pineview Loans Approved

By fax dated 9 February 2012, ANZ notified Ms Dawson of its approval of an “Investment Loan Variable” for $1,080,400, and a second loan for $920,320. Two versions of an internal ANZ document titled “Consumer Company Loan Proposal” were in evidence. The first was prepared by a loan assessor and dated 13 January 2012, while the second, which was dated 3 February 2012, contained the same information as the first version together with updated information following receipt of the additional material on 3 February 2012. The assessment included reference to the income of Ms Huybers and the profit made by Green Global as representing a combined income of $562,055 to service the loan. The assessment also referred to receipt (on 3 February 2012) of the letter from “the applicant’s accountant confirming that pineview doesn’t trade and it will also be related to the purchase”. The notes at the conclusion of the second version of the document under the heading “Justification” included:

“… Applicant has good history with ANZ with good income. Corporate guarantee used to capture company profits as well. …”

ANZ sent two letters dated 14 February 2012 to Pineview ATF Pineview Trust, using the Bella Vista address of Wyse & Young, confirming approval of the two loans. Ms Huybers gave evidence that on 23 February 2012, she drove to the Gold Coast to meet Mr Kalischer in order to sell a car to an associate of his. She was having coffee with Mr Kalischer and two others when Mr Kalischer asked the others to go away and told her that he had some documents for her to sign, at the applicant’s request (Tcpt 06/06/23 p 257). Ms Huybers recalled a bundle with “sign here” stickers on it. She thought that she was signing documents “to progress borrowing money to invest”, although when asked how much money she was borrowing she said she did not know (Tcpt 06/06/23 p 263).
On 4 March 2012, Mr Winiata emailed the applicant seeking a signed guarantee from Ms Huybers in respect of the $1,080,400 loan. The applicant replied, “I hold all documents and copies in my office I will check and send to you if there”. According to subsequent correspondence from the ANZ to Pineview dated 29 October 2013, settlement of the two loans took place on 8 March 2012. In relation to the respective loans:

The first loan (ref 710-659-478) was for $1,080,400, secured by a first registered mortgage over the Calderwood Property, with a guarantee and indemnity from both Ms Huybers and Green Global. After bank fees and charges, $1,074,663.80 was available at settlement. The entire amount of those funds was paid by cheque to Wyse & Young Accounting.

The second loan (ref 710-659-490), was for $920,320, secured by a first registered mortgage over the Pine Valley Property, again with a guarantee and indemnity from both Ms Huybers and Green Global. After bank fees and charges, $915,887.20 was available at settlement. Two cheques were directed to be drawn on settlement in relation to those funds, $123,059.50 to Wyse & Young, and $792,827.70 to Wyse & Young Accounting.

The trial judge found that the applicant had a significant interest in the Pineview loans being approved and that the degree to which he benefited was “consistent with him being the controlling hand in what unfolded”: at [443]. Her Honour stated:

“[444] In summary, the accused benefited himself with the proceeds of the loan as follows:
(1)   Paying himself $301,043.78 for the debts of Lee Rubino in 2010 (see Exhibits 12 and 42).
(2)    Paying himself $140,800 on 9 March 2012 for the sale of a Rubino property to a neighbour in 2010 (Exhibit 43).
(3)   Paying himself $34,892.00 on 9 March 2012 for organising the loan of $1,050,000 to the Rubinos (Exhibit 44).
(4)   Paying himself via Defined Gardens Artistry Pty Ltd for work between 8-20 March 2012 in the amount of $26,465 (for which Frank Rubino had no memory of any service provided).

[445] Notwithstanding the accused referring to being owed $200,000 in December 2012, post March 2012, he paid himself $503,200.78 according to the Defence exhibits.”

The judgment on verdict

Her Honour gave herself a number of directions, which I will address below in so far as they were relevant to the grounds of appeal. In relation to the elements of the s 192E(1)(b) offence, her Honour directed herself that in order to prove the offence in s 192E(1)(b), the Crown must prove beyond reasonable doubt that: the accused; by deception; dishonestly caused a financial disadvantage: at [12].
After summarising the evidence of the various Crown witnesses as I have noted above, her Honour found that documents provided in support of the Pineview loan application contained multiple falsities. Her Honour found that the falsities were intended to deceive ANZ as to the purposes of the subject loans and the capacity of Ms Huybers, through Pineview, to service them. Her Honour found that the applicant used Ms Huybers as a figurehead for Green Global which, to his knowledge, never traded: at [453]-[454].
The trial judge found that the applicant knew of Ms Huybers’ limited financial means and that she had no capacity to service the Pineview loans. Her Honour found that there was “a compelling body of documentary evidence” to establish that “the accused would have well known that the loan application … was deceptive”: at [455]. The judge referred to the documents containing false information purporting to identify a capacity to service such a loan. The applicant’s dealings with Mr Rubino exposed the deception that the loan was never a long-term investment for Ms Huybers, with his emails contemplating that she would effectively hold the two properties on trust for the Rubinos, as a private lender: at [456]. Her Honour also found that there was a significant body of evidence to establish that the applicant was responsible for the preparation and provision of the documents submitted with the loan application: at [457].
In relation to the element of deception, the trial judge was satisfied that the applicant submitted the Pineview loan application knowing that the loan application was deceptive in that it contained false information: at [458]. Her Honour noted that it was not necessary for the deception relied upon to operate on the mind of an identified person or a representative of the relevant entity, citing R v SKL; R v JY; R v XGL [2019] NSWCCA 43 at [28]-[29], [62], [68] (Adamson J): at [459]. The applicant’s reliance on the absence of evidence from ANZ as to any financial disadvantage was thus not a matter that her Honour took into account: at [459].
In relation to the element of dishonesty, the trial judge was satisfied that the evidence established that the applicant knew that the Pineview loan application did not reflect Ms Huybers’ true financial reality or intentions, nor did it reflect what he intended was to occur with the loan proceeds. The applicant knew the loan application was contrary to the expressed written intention and was therefore dishonest: at [460]. Her Honour relied upon the deception referred to above as evidence of dishonesty, and found that the applicant would have known that any loan application suggesting that Ms Huybers could service a loan exceeding $2,000,000 was dishonest. Moreover, her Honour found “that part of the accused’s collateral deception was misleading Ms Huybers as to what exactly was occurring during this period of time”: at [462].
Her Honour found that the applicant’s description of the joint loan investment arrangement to Ms Huybers, and his assurances to her in his email dated 15 January 2012. that he “will guarantee all investors monies as I always do”, constituted dishonest conduct that was designed falsely to reassure her that he had her interests in mind, whilst he devised a loan structure that entailed the abuse of her financial naivety and the trust she placed in him: at [463]. The trial judge was satisfied that the applicant acted dishonestly according to the standards of ordinary people and further that he knew that his conduct was dishonest according to the standards of ordinary people: at [464].
In relation to intention, the trial judge’s reasoning was as follows:

“[456] In determining what the intention of the accused was, I have taken into account the conduct of the accused before the application, at the time of the application and after the application. I have had regard to his conduct over time, including his conduct towards Ms Huybers, and the ultimate destination of money.
[466] The accused’s emails leave no doubt that there is a complete disconnect between what appears on the loan application and the intention of the accused, and what would actually occur with the loan proceeds. I find it proven that the accused intended to deceive the ANZ Banking Group when he caused the loan application to be submitted.”

On the element of causation, the trial judge was satisfied that the false information about the income and loan paying capacity of the applicant, together with the stated purpose of the loan, were the only reasons which could be suggested as the operative inducement on ANZ to approve the loan and issue the two bank cheques in the amount of $1,074,663.80 and $792,827.70 to Wyse & Young Accounting: at [468]. Her Honour was satisfied that the deception induced the ANZ loan assessors to approve the loans that caused a financial disadvantage to ANZ in the amount averred in the indictment ($1,867,491.50): at [469]. Her Honour was thus satisfied that the Crown had proved the causal connection between the deception and the financial disadvantage: at [468]-[470].
Her Honour concluded:

“[471] Based upon a combination of direct and circumstantial evidence, I have asked myself whether from those facts together as a whole I can conclude that the accused is guilty of the offence charged. I do find that such a conclusion is a reasonable one to draw based upon a combination of those facts I find established. I am satisfied that the Crown has established that this conclusion is the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole. I have determined that there is no other reasonable conclusion arising from those established facts that is inconsistent with that established conclusion.
[472] The established facts lead to an unavoidable conclusion that the Crown has established the guilt of the accused beyond reasonable doubt.”

Ground 1: The trial judge erred in law in failing to direct herself that she needed to be satisfied beyond reasonable doubt that the applicant intended to cause ANZ a financial disadvantage, or was reckless as to that possibility

Section 192E of the Crimes Act is contained in Part 4AA, which is titled “Fraud”. The section provides as follows:

192E Fraud
(1)   A person who, by any deception, dishonestly –
(a)   obtains property belonging to another, or
(b)   obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.
Maximum penalty – Imprisonment for 10 years.

(2)   A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property.
(3)   A person may be convicted of the offence of fraud involving all or part of a general deficiency in money or other property even though the deficiency is made up of any number of particular sums of money or items of other property that were obtained over a period of time.
(4)   A conviction for the offence of fraud is an alternative verdict to a charge for the offence of larceny, or any offence that includes larceny, and a conviction for an offence of larceny, or any offence that includes larceny, is an alternative verdict to a charge for the offence of fraud.

A number of other sections in Part 4AA address the meaning of particular terms in s 192E. Relevantly for present purposes, the word “deception” is defined in s 192B as follows:

192B Deception
(1)   In this Part, deception means any deception, by words or other conduct, as to fact or law, including –
(a)    a deception as to the intentions of the person using the deception or any other person, or
(b)    conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

(2) A person does not commit an offence under this Part by a deception unless the deception was intentional or reckless.

Section 192D addresses the meaning of obtaining a financial advantage and causing a financial disadvantage, providing:

192D Obtaining financial advantage or causing financial disadvantage
(1)   In this Part, obtain a financial advantage includes—
(a)   obtain a financial advantage for oneself or for another person, and
(b)   induce a third person to do something that results in oneself or another person obtaining a financial advantage, and
(c)   keep a financial advantage that one has.

(2)    In this Part, cause a financial disadvantage means—
(a)    cause a financial disadvantage to another person, or
(b)    induce a third person to do something that results in another person suffering a financial disadvantage,
whether the financial disadvantage is permanent or temporary.

The term “dishonesty” is defined in s 4B, for the purposes of the Act:

4B Dishonesty
(1) In this Act—
dishonest means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence, dishonesty is a matter for the trier of fact.

I have set out in [75] above the trial judge’s direction regarding the elements of the offence in s 192E(1)(b): the accused; by deception; dishonestly caused a financial disadvantage. Her Honour set out those elements in two draft documents that she provided to counsel for the Crown and the applicant during the trial, respectively titled “Elements Document Version 1” and “Elements Document Version 2” (MFI 110 and 111: see Tcpt 19/07/23 p 1315). The difference of substance between the two documents was that Version 1 included references to recklessness in the discussion of the element of “deception” (consistently with the terms of s 192B(2)), whereas Version 2 did not. The likely explanation for the omission of recklessness from Version 2 is that the Crown case against the applicant relied on intentional deception, as her Honour noted at [14] of the judgment on verdict.
On 24 July 2023, the trial judge invited the parties to comment on the elements document by Thursday, 27 July 2023 (Tcpt 24/07/23 p 1468). In defence closing written submissions dated 27 July 2023 (MFI 116), no specific comment was made on the elements document. However, the closing written submissions reflected the elements as her Honour had identified them. Under the heading “Directions”, the only direction that counsel addressed was the need for a Liberato direction.
On appeal, the applicant advanced a novel construction of s 192E(1)(b). He submitted that the provision is an offence of specific intent, relying on Brennan J’s obiter explanation of that concept in He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-570; [1985] HCA 43. The applicant identified the elements of the offence in his written submissions, as they applied in the present case, as follows:

“(1)   The accused engaged in a deception (physical element).
(2)   That was intentional (fault element) [noting in a footnote that the Crown case was that the deception was intentional].
(3)   That caused a financial disadvantage (the consequence element).
(4)   The causing of a financial disadvantage was intentional or reckless (the further fault element for the consequence element).
(5)   The causing of the financial disadvantage was dishonest by the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people (characterisation element and further fault element).”

The applicant submitted that, consistently with ordinary principles of criminal liability, the consequence (his element 3) must be one that the accused person intended (his element 4). It was thus necessary for the Crown to prove beyond reasonable doubt that the applicant, by his deception, intended to cause the alleged financial disadvantage to ANZ (given the Crown had put the case on the basis that the deception was intentional and not reckless). The trial judge did not direct herself in those terms, and did not consider or make findings on the question of whether the applicant had that intention. It followed, the applicant submitted, that her Honour had erred in law.
The applicant accepted that leave was required to raise this ground pursuant to r 4.15 of the Criminal Appeal Rules, as his trial counsel did not object to the trial judge’s directions on the elements of the offence. However, he submitted that directing the tribunal of fact as to the elements of an offence is so fundamental a task that leave under r 4.15 should be granted even when objection is not taken at trial. He relied in this respect on Cook (a pseudonym) v R [2022] NSWCCA 282 at [56] (“Cook”), a case in which the Crown conceded that the trial judge did not adequately direct the jury on an agreed element. In oral submissions, counsel for the applicant submitted that if the construction of s 192E(1) for which he contended on the appeal were accepted, the applicant had been tried for an offence which was not known to the law.
The present case is in an altogether different category to Cook. The trial judge proceeded on the basis of elements of the offence which were not the subject of any dispute, and did not include the element that he advanced on appeal. Further, and in any event, the construction for which he contended is without merit.
Although no case has considered the precise construction of s 192E(1) for which the applicant contended, it is of some significance that no court has construed the offence as including the applicant’s fourth element. In cases that have involved the offence in s 192E(1) (or its statutory predecessor), this Court has explained that the offence expressly requires that it be committed both “by deception” and “dishonestly”, with the respective definitions of those terms assigning a different mental element: see eg Bazouni v R [2021] NSWCCA 256 at [75]-[76].
The definition of “deception”, in s 192B of the Crimes Act, does not require the deception to induce a false belief in the recipient of information. Rather, “[t]he relevant effect is prescribed by the third element of the offence”, namely obtaining any financial advantage or causing any financial disadvantage: Duncan v Independent Commission Against Corruption [2016] NSWCA 143 (“Duncan v ICAC”) at [647] (Basten JA). The phrase “by deception”, in s 192E(1), requires a causal connection between the deception used and the relevant effect. In Flack v R [2011] NSWCCA 167 (“Flack”), which concerned the statutory predecessor to s 192E (s 178BA of the Crimes Act) Johnson J (McLellan CJ at CL and Hidden J agreeing) stated:

“[37]…The deception must have been the means whereby the financial advantage was obtained, or the effective cause of the financial advantage being obtained. It is an essential ingredient of an offence under s.178BA that the cause of the giving of the financial advantage was the deception used by the accused person: R v Stanhope (NSWCCA, unreported, 10 September 1987, pages 6-8); R v Clarkson [1987] VR 962 at 980; R v Ho; R v Szeto [(1989) 39 A Crim R 145] at 147.”

Referring to this paragraph of Flack in Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW); Re Robert Burton (a pseudonym) [2021] NSWCCA 87, Simpson AJA considered that the decisions to which Johnson J referred applied equally to s 192E: at [63]. Her Honour also stated that it was not necessary for the Crown to establish that the deception was the sole cause of the outcome, although it must establish that the deception substantially or significantly contributed to that outcome: at [64].
The requirement of a causal connection between the deception used and (dishonestly) obtaining a financial advantage or causing a financial disadvantage tells against the applicant’s implication of a further mental element accompanying the latter, particularly having regard to the terms of ss 192F and 192G. Bathurst CJ referred to the difference between s 192E and ss 192F and 192G in Duncan v ICAC at [350] (in a passage referred to with approval in Hughes v R [2021] NSWCCA 238 at [29] (Payne JA)), stating:

“It is significant that the offence [in s 192E] requires that a financial advantage be obtained by deception. In this regard it may be contrasted, for example, with s 92F which makes it an offence to dishonestly destroy or conceal an accounting record with the intention of obtaining a financial advantage or, more importantly, s 192G which makes it an offence to make or publish a false or misleading statement with the intention of obtaining a financial advantage. The latter two sections, unlike s 192E, do not require that the financial advantage actually be obtained but rather that there be an intention to obtain such an advantage.”

The evidence thus comfortably grounded the inference that the applicant provided the false financial documents to Mr Winiata and knew that the false financial documents were used in support of the application for the Pineview loans. The evidence also comfortably supported the conclusion that the applicant provided the sale contract coversheets and the letter as to loan purpose, which the applicant described as the “non-financial documents”. It was the applicant who proposed backdating the sale contracts, in one of his emails to Mr Winiata, so as to map with the date of Ms Huybers’ statutory declaration of 29 November 2011 (see [34] above). The letter as to loan purpose was given under his signature. I am satisfied the evidence satisfied this element of the charge to the requisite standard. I reject particular 2.

Particular 3: a “financial disadvantage” was not proven

The applicant submitted that he did not cause ANZ a financial disadvantage because each of the Pineview loans attracted a commercial rate of interest and was secured by a top-ranking security over a property that was worth several hundred thousand dollars more than the value of the loan. There was a commercial rate of interest and repayments were to be made monthly. The applicant submitted that the trial judge erred in relying upon the payment of funds by ANZ as constituting a financial disadvantage without considering the commercial context and any benefits that ANZ was to receive.
As I have noted above, the phrase in s 192E(1)(b), “cause a financial disadvantage” is defined in s 192D. As the trial judge noted at [467], the definition makes it very clear that a financial disadvantage may be temporary. On any view, ANZ’s advance of approximately $1.87 million pursuant to the Pineview loans, including for a stated purpose that was false and on the basis of information as to loan serviceability that was false, constituted a financial disadvantage. The fact that the loan was secured and ANZ could, in the event of default, take possession of the two properties, exercise a power of sale and recoup the loan funds, might have meant that its disadvantage was temporary. But a temporary financial disadvantage is sufficient. I reject particular 3.

Particular 4: the financial disadvantage was not caused by the applicant’s dishonest deception

The central point advanced on this particular was that the wrongful acts of Mr Winiata, in forging Ms Huybers’ signature, and Ms Dawson, in signing the interview checklist, operated to break the chain of causation in relation to the applicant. The applicant submitted that there was a reasonably strong inference available that, had Ms Dawson not falsely indicated that she interviewed Ms Huybers, or had Mr Winiata not forged Ms Huyber’s signature on the application, ANZ would not have approved the loan.
I have addressed the content of the requirement for a causal connection in the context of ground 1 above (see [95]-[96]). It was necessary for the Crown to establish that the deception relied on substantially or significantly contributed to the outcome of ANZ advancing the loan funds. The conduct of the applicant in the provision of the false documentation was properly so characterised.
As was the case with the applicant’s submissions on the second particular, his submissions on this particular overlooked the ANZ credit assessment, from which a causal connection between the false information and the approval of the loan was readily apparent. Given the importance of the purpose of the loan in terms of assessing its serviceability, the letter falsely stating that the purpose of the loan was a long-term investment was also, apart from the financial documents, a significant or substantial cause of the financial disadvantage suffered by ANZ. I reject particular 4.

Conclusion on grounds 4 and 5

Having considered the particulars that the applicant advanced in support of this ground individually and collectively, and made my own independent assessment of the evidence, I have concluded that the evidence led in the trial was sufficient in nature and quality to eliminate any reasonable doubt that the applicant was guilty of the offence. I would grant leave to raise ground 4 but I would dismiss the ground.
Ground 5 was rejected in addressing particular 1 of ground 4. The grant of leave should be extended to ground 5.

Conclusion on the conviction appeal

I would refuse leave under r 4.15 of the Criminal Appeal Rules to raise ground 1. I would grant leave to raise grounds 2-5 but would dismiss the appeal against conviction.

The sentence appeal

Given the detail in which I have addressed the trial judge’s reasons on the conviction appeal and the nature of the applicant’s proposed grounds of appeal on sentence, I can address the sentence appeal more briefly. For the reasons that follow, although I would grant leave to the applicant to appeal against his sentence, I would dismiss the appeal.

The judge’s reasons on sentence

The sentence hearing occurred on 8 December 2023. The Crown tendered documents which included the applicant’s criminal and custodial history and a Sentence Assessment Report dated 27 November 2023. The applicant tendered a bundle of documents which included a report prepared by Dr Dornan, psychologist, dated 30 November 2023, and a number of affidavits and references in support of the applicant’s character. After the hearing, the parties provided further written submissions in January 2024. On 8 February 2024, the applicant sought to reopen his case to adduce further evidence on the issue of whether the offending had caused Ms Huybers to lose her Queensland house.
In sentencing the applicant, her Honour first summarised the facts from the judgment on verdict before moving to consider the objective seriousness of the offence having regard to a number of well-recognised factors. Her Honour considered that the amount of money involved in the offending, being the sum of $1,867,491.50, was not in the worst-case category but was nonetheless substantial. The offending was not an impulsive decision but a calculated and persistent demonstration of deceptive conduct over several months, which her Honour later described as involving a level of sophistication in which the applicant cloaked what he was actually doing. Her Honour considered that the applicant was motivated by personal enrichment, acting with a misplaced sense of financial entitlement and callous disregard of those with true financial entitlement.
Her Honour also referred to the “collateral” deception of Ms Huybers, who was misled over a number of months with respect to the details of what actually occurred. Her Honour found that the applicant knew Ms Huybers was of limited financial means and that she trusted him as a financial adviser; and that the applicant had no regard for the inevitable financial exposure and loss she would suffer by reason of being so financially exposed. Having regard to all of these matters, her Honour concluded that the offence was “serious and a reasonably complex act of criminality” falling within the mid-range for offences of this kind.
The Crown initially relied on the aggravating factors in ss 21A(2)(g) and 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW), in relation to the applicant’s conduct towards Ms Huybers. Ultimately, however, the Crown resiled from those submissions and her Honour did not rely on either provision as aggravating the applicant’s offending. Her Honour also eschewed reliance on s 21A(2)(o).
When considering mitigating factors, the sentencing judge found the applicant was entitled to leniency as a first-time offender: s 21A(3)(e). On balance, however, her Honour gave limited weight to the applicant being a person of prior good character, noting that prior good character generally assumes less significance in circumstances of white-collar offences. Pursuant to ss 21A(3)(g) and 21A(3)(h) respectively, the sentencing judge found that the applicant had a low risk of reoffending and reasonable prospects of rehabilitation. In reaching this conclusion, her Honour had regard to the report of Dr Dornan, who considered the applicant’s risk of reoffending was low, and that the applicant had not committed any similar offences since 2012.
The character references provided in support of the applicant also went to his good prospects of rehabilitation, while the Sentence Assessment Report noted that the applicant was willing to undertake interventions and address his mental health. However, her Honour also noted that the applicant was reported to have made statements to the author of the Sentence Assessment Report and to Dr Dornan which indicated that he failed to appreciate that defrauding a large bank was a serious crime, demonstrating a lack of insight into the offending.
In relation to applicant’s subjective circumstances, her Honour noted that the applicant’s family remained supportive; he was the director of his own business; he had an unstable childhood; and his parents died in his adolescence. Dr Dornan’s opinion was that the applicant met the diagnostic criteria for persistent depressive disorder and general anxiety disorder, but her Honour did not find a causal connection between the offending and his mental health such as to reduce his moral culpability. Her Honour also considered the delay in finalising the matter but considered that the applicant’s conduct had necessitated a complex and lengthy investigation. Her Honour did not consider the delay to be so inordinate that it would be a mitigating factor.
In assessing the applicant’s hardship in custody, the primary judge was not satisfied that there was sufficient evidence to support the proposition that his experience in prison would be different from that of the typical prisoner to such an extent that his sentence should be reduced. Her Honour found special circumstances on the basis that the applicant had sound prospects of rehabilitation and would benefit from an extended period of supervision.
The sentencing judge noted that “meaningful and substantial sentences of imprisonment” must be imposed for serious examples of fraud offences: McKittrick v R [2014] NSWCCA 128 at [121], noting the difficulty in detecting and successfully prosecuting white collar crime: McMahon v R [2011] NSWCCA 147. Her Honour outlined the significant repercussions frauds upon banks have on the community. Her Honour also stated that personal deterrence was important here given the seriousness of the criminal conduct involved. Noting the applicant’s attitude to the offending and his failure to appreciate its seriousness, her Honour was dissuaded from finding that his rehabilitation mitigated the need for personal deterrence.

Ground 6: The trial judge took into account an irrelevant consideration, namely deception other than the operative deception of ANZ charged; and

Ground 7: In the alternative, the trial judge took into account an irrelevant consideration or acted on a wrong principle, in taking into account (in substance) a breach of trust in relation to Ms Huybers as aggravating the offending

The applicant submitted that the sentencing judge took into account uncharged deception, or alternatively, took into account (in substance) a breach of trust in relation to Ms Huybers. Although the applicant accepted that the extent of the deception that her Honour found was relevant to sentence, he submitted that the focus should be on the deception actually practised on the victim (here, ANZ) which was found to be causative of the financial disadvantage. The applicant submitted that instead, her Honour erroneously focused on the position of Ms Huybers, and relied on his deception of her as increasing the objective seriousness of the offending.
The applicant relied in this respect on the sentencing judge’s summary of her findings in the judgment on verdict regarding the extent of the deception, which included:

“The offender well knew that Ms Huybers was of limited financial means. She had entrusted him as her financial advisor. I found the offender well knew of her minimal 2010 and 2011 income as reflected in the genuine tax returns the offender relied upon to falsify the false tax returns submitted to the ANZ Bank. On 3 November 2011 the offender states ‘Great work’ (Exhibit B p 44), in response to Ms Huybers forwarding her 2009 Notice of Assessment which showed she had an annual income of just $3,281 in the year ending 30 June 2009 (Exhibit B, pp 42-46). He clearly knew the state of her financial affairs.
…
As per Exhibit C p 109, the offender wrote to the ANZ Bank and requested the loan proceeds of $1,867,491.50 to be paid to Wyse Accounting Pty Ltd. ANZ followed those instructions. The money once received by the offender would have been held in trust for Ms Huybers. Within the same letter, the offender stated that the proceeds will be used to discharge the Torrens Title for 45 Pine Valley Road and 5 Calderwood, Galston.
Despite receiving those funds in trust and the representations that he made, the offender dispensed the moneys to himself and others, as I have referred to. In my view, he acted with a breathtaking disregard for Ms Huybers as a client and as a person who was in a particularly vulnerable point in her life. He had no regard for the inevitable financial exposure and loss that she would suffer by reason of being so financially exposed.”

The applicant also relied on the following findings that her Honour made on sentence:

The offending involved a “calculated, persistent demonstration of deceptive conduct carried out over several months”.

The applicant “acted with a misplaced sense of financial entitlement and a corresponding callous disregard to those with true financial entitlement”, which the applicant submitted related to Ms Huybers and not ANZ.

The “offending involved a devious scheme and that a good part of the reason the offender was able to effect it was because he fooled others into thinking he had greater knowledge of financial matters and so to trust him”, and that “[i]t involved the collateral deception of Susan Huybers”.

Ms Huybers was “so financially naïve and illiterate that she did not understand how the offender had arranged her financial affairs, nor indeed that it was the offender who was acting against her interests in relation to this loan”; and “the offender continued to deceive and mislead Ms Huybers including in the early stage of the investigation as to who was at fault in this matter”.

I do not accept the applicant’s submissions on these grounds. As the Crown submitted, in assessing the objective seriousness of the offence her Honour was required to consider the nature of the applicant’s dishonesty and the nature, extent and sophistication of the deception perpetrated on ANZ over the time period averred in the indictment (30 November 2011 to 10 March 2012). Considering those matters inexorably required consideration of the applicant’s related deception of Ms Huybers as to the nature, purpose (and existence) of the loan, the reasons why she was required to become the director of Pineview, and the reasons given for her signing various documents. Her Honour’s findings reflected the interconnectedness of the applicant’s interactions with Ms Huybers and with ANZ. At the same time, her Honour expressly disavowed relying on the deception of Ms Huybers as aggravating the offending. There was no error in her Honour’s approach in the manner alleged in grounds 6 and 7.

Ground 8: The trial judge acted on a wrong principle in concluding that the need for specific deterrence was not mitigated by (a) the unlikelihood of the offender reoffending; (b) the offender’s prior good character; and (c) the fact that the offender had not offended since the offence charged

I have set out above the findings that the sentencing judge made on the matters about which the applicant complained pursuant to this ground. The applicant took particular issue with the following part of her Honour’s reasons:

“Similarly, personal deterrence is important here given the seriousness of the criminal conduct involved. By reason of the offender’s attitude to the offending (referred to above when I was referring to mitigating factors) and his failure to appreciate the seriousness of this type of offending, I am dissuaded from a finding that his rehabilitation mitigates the need for personal deterrence.”

The applicant accepted that his lack of insight (given he maintained his innocence) might ground some need for specific deterrence. However, he submitted that the sentencing judge’s statement that established rehabilitation did not “mitigate” the need for personal deterrence demonstrated “a misapprehension as to what specific deterrence is and the factors which are relevant to it”. He submitted in this respect that a finding that a person is unlikely to reoffend diminishes the importance of specific deterrence: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [129] (“Totaan”).
The decision in Totaan does not support a proposition of the breadth of the applicant’s submission. In that case, the appellant pleaded guilty to two Commonwealth fraud offences. After error was established and the Court proceeded to resentence, Bell CJ stated that the need for specific deterrence was low as there was a low risk of reoffending, stemming from the fact that an abusive relationship, which contributed to the offence, had ended. It did not follow that in the present case her Honour fell into error by not similarly finding, and it certainly did not follow from what her Honour said that her Honour misunderstood specific deterrence, or its role within the sentencing discretion. I would reject ground 9.

Conclusion

I propose the following orders:

Leave to rely on ground 1 in support of the conviction appeal is refused.

Grant leave to appeal on grounds 2-5 in support of the conviction appeal.

Dismiss the conviction appeal.

Grant leave to appeal against sentence.

Dismiss the sentence appeal.

BASTEN AJA: I agree with Mitchelmore JA that both the appeal against conviction and the appeal against sentence should be dismissed.
These further observations relate to ground 1 on the conviction appeal, which sought to rely upon a construction of s 192E of the Crimes Act 1900 (NSW) which had not been presented during the trial. As counsel for the applicant accepted, that ground requires leave pursuant to the Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15.
Given the comparative transparency of a judge-alone trial over a jury trial, there may be circumstances in which leave is more readily granted than in the case of a jury trial. For example, where the new material is a proposed additional direction on a question of law, it may be easier to tell from the judge’s reasons whether such a direction would have been material and whether the omission may have resulted in a miscarriage of justice. It may also be necessary to ask whether the fresh issue is one which could have been addressed by further evidence.
For the following reasons, the trial did not proceed upon a false understanding as to the law, and accordingly I agree with Mitchelmore JA that leave to raise the point should be refused. Perhaps unusually in refusing leave, it is necessary to explain why the issue lacks merit. That requires identification of the elements of the offence.
The terms of s 192E, s 192B (the meaning of deception), s 192D (causing a financial disadvantage) and s 4B (the meaning of dishonesty) have been set out at [84]-[87] above.
The indictment contained three elements, namely (a) by deception (i) submitting (or causing to be submitted) a loan application to the ANZ bank, (ii) knowing that the application contained false information, (b) thereby causing a financial disadvantage to the ANZ bank.
The logic of this formulation, which follows from the language of s 192E(1), involves conduct (which may be described as “the deception”), which has a consequence, namely causing financial disadvantage. There is no doubt that both limbs of (a) involve a mental element. Thus, merely preparing a loan application containing false information, without deliberately submitting it to the ANZ Bank, would not satisfy the element of the offence. If the accused did not submit the application, but someone in the office found it on his desk and, without authority, sent it to the bank, the conduct would not satisfy the first limb of the offence, unless the accused had been reckless. Similarly, the second element contains a requirement of knowledge, or at least recklessness. The offence is not committed unless the accused knew or believed that the information contained in the application was false in a material respect, or was reckless as to that element. The formulation in the indictment acknowledged the second element by referring to the accused “knowing” that the loan application contained false information. This was identified by counsel for the applicant as an element of “specific intent”.^[1]
1. CCA Tcpt, 02/10/24, pp 4(50), 10(40).

Two further points may be made in relation to the pleading. First, the term “knowing” does not appear in s 192E(1). However, the pleader was not wrong to use that language. Both “deception”, and “dishonestly” require knowing falsity or withholding of the truth. (It may be noted that the reference to “deception” in s 192B is not a true definition: although it says what the word “means”, it commences with the term itself, says how it may occur, identifies the subject-matter as “fact or law”, and states that it includes certain matters.^[2])
2. See P Herzfeld and T Prince, Interpretation (3rd ed, Law Book Co, 2024), at [3.10] and [3.70].
The second point to be noted in relation to the pleading is that it did not allege that the conduct was dishonest according to the standards of ordinary people, nor did it plead that it was “known by the defendant” to be dishonest according to those standards. That was not necessary: it was sufficient to plead that the accused “dishonestly caused” a disadvantage. That language picked up the definition in s 4B of “dishonest” in accordance with the terms of that provision.
As explained by Mitchelmore JA at [91] above, the error relied on by the applicant was an alleged failure of the trial judge to identify that the causing of a financial disadvantage was intentional or reckless.
There are a number of reasons why this ground fails. However, first and dispositively, the financial disadvantage to the ANZ Bank was the making of the loan in response to the materially false loan application. The making of the loan (and thus the incurring of the financial disadvantage) was the sole uncontested purpose of the deceptive conduct, namely the submission of the loan application. On the assumption that the first element, namely submitting a false loan application, or causing it to be submitted, was proved, the intention as to the consequence was not in issue.
Secondly, the supposed requirement for a mental element identified by Brennan J in He Kaw Tehv The Queen^[3] is redolent of the submission that was presented (and rejected) in Salameh v R.^[4] Nothing that was said in He Kaw Teh demands a requirement of a particular state of knowledge in an accused as to every element of an offence. The significance of that point is muted in a case where the consequence in fact achieved was clearly intended. In circumstances where that is not the case, the correct analysis would be to focus on whether the necessary causal connection was established between the deceptive conduct and the consequence.
3. (1985) 157 CLR 523 at 569-570; [1985] HCA 43.
4. [2024] NSWCCA 239 at [64].
WRIGHT J: I agree with the orders proposed by Mitchelmore JA for the reasons that her Honour has given and in light of my independent assessment of the evidence and the findings of fact made by the trial judge about which no issue was taken in the appeal.

**********

Endnotes

Decision last updated: 24 February 2025

Medium Neutral Citation:	Dimitriou v R [2025] NSWCCA 18
Hearing dates:	2 October 2024
Decision date:	24 February 2025
Before:	Mitchelmore JA at [1]; Basten AJA at [172]; Wright J at [183]
Decision:	(1) Leave to rely on ground 1 in support of the conviction appeal is refused. (2) Grant leave to appeal on grounds 2-5 in support of the conviction appeal. (3) Dismiss the conviction appeal. (4) Grant leave to appeal against sentence. (5) Dismiss the sentence appeal.
Catchwords:	CRIME — fraud — dishonestly cause financial disadvantage by deception — directions as to elements of offence — whether a further mental element applies to financial disadvantage outcome element — where point not raised below CRIMINAL PROCEDURE — trial — judge alone — character evidence — whether sufficient consideration given to own directions about character evidence — impact of prior good character on likelihood of offending CRIMINAL PROCEDURE — trial — judge alone — witness evidence — warnings — unreliable evidence — whether trial judge had proper regard to own directions as to reliability of witnesses — where witnesses may have been involved or culpable in offending conduct CRIME — appeals — appeal against conviction — unreasonable verdict — whether crown proved elements of offence beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether charged conduct described differently in indictment, crown case, and trial judge’s directions — whether applicant “submitted” falsified documents to bank — whether sufficient that applicant caused falsified documents to be submitted to bank CRIME — appeals — appeal against sentence — taking into account an irrelevant consideration — misapplication of principle — fraud — whether corollary deception and breach of trust relevant CRIME — appeals — appeal against sentence — misapplication of principle — specific deterrence — whether error in conclusion that specific deterrence not mitigated by prior good character and lack of subsequent offending
Legislation Cited:	Crimes Act 1900 (NSW), ss 4B, 192B, 192D, 192E, 192F, 192G Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Criminal Code Act 1995 (Cth), ss 134.1, 134.2, 135.1 Criminal Procedure Act 1986 (NSW), s 133 Evidence Act 1995 (NSW), s 165
Cases Cited:	AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW); Re Robert Burton (a pseudonym) [2021] NSWCCA 87 Baker v R [2023] NSWCCA 262 Barwick v R [2023] NSWCCA 139 Bazouni v R [2021] NSWCCA 256 Cook (a pseudonym) v R [2022] NSWCCA 282 Constantinidis v R; Lazar v R [2022] NSWCCA 4 Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Flack v R [2011] NSWCCA 167 Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 He Kaw Teh v The Queen (1985) 157 CLR 523 at 569-570; [1985] HCA 43 Hughes v R [2021] NSWCCA 238 McKittrick v R [2014] NSWCCA 128 McMahon v R [2011] NSWCCA 147 Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 Rassi v R [2023] NSWCCA 119 R v SKL; R v JY; R v XGL [2019] NSWCCA 43 Salameh v R [2024] NSWCCA 239 Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 Wade v R [2018] NSWCCA 85
Texts Cited:	P Herzfeld and T Prince, Interpretation (3rd ed, Law Book Co, 2024)
Category:	Principal judgment
Parties:	George Dimitriou (Applicant) Rex (Respondent)
Representation:	Counsel: C Parkin (Applicant) S Lind (Respondent) Solicitors: P Williams and Company Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/116264
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 1 September 2023; 16 February 2024 Before: David DCJ File Number(s): 2016/116264