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Fineff v The King

Fineff v The King

Case [2024] NSWCCA 102 17 June 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Fineff v R [2024] NSWCCA 102
Hearing dates: 3 June 2024
Decision date: 17 June 2024
Before: Leeming JA at [1];
Davies J at [64];
N Adams J at [65]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – aggregate sentence of 9 years imprisonment, with a non-parole period of 5 years and 4 months for 12 offences of dishonestly obtaining financial advantage by deception – whether sentence manifestly excessive – highly favourable subjective case – early plea of guilty – assistance to authorities – total fraud in excess of $3.3 million – offending took place over some 3½ years – many victims elderly – substantial financial harm and emotional distress inflicted on victims – consideration of comparable cases – appeal dismissed

Legislation Cited:
Corporations Act 2001 (Cth), s 1041G
Crimes Act 1900 (NSW), s 192E
Crimes Act 1914 (Cth), s 16BA
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Criminal Appeal Act 1912 (NSW), s 5
Sentencing Act 1991 (Vic), s 6AAA

Cases Cited:
Abellanoza v R [2021] NSWCCA 4
AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133
Barnes v Addy (1874) LR 9 Ch App 244
Berryman v R [2017] NSWCCA 297
Davidson v R [2022] NSWCCA 153; 300 A Crim R 214
DPP v Luscombe [2024] VCC 370
Elsaj v R [2017] NSWCCA 124
Nakhl v R (Cth) [2020] NSWCCA 201
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
PG v R [2017] NSWCCA 179; 268 A Crim R 61
R v Burke [2002] NSWCCA 353
R v Clarke [2019] NSWDC 2
R v Fineff [2023] NSWDC 108
R v Hopkins [2021] NSWDC 410
The King v Hatahet [2024] HCA 23

Category: Principal judgment
Parties: Gavin Daniel Fineff (Applicant)
Crown (Respondent)
Representation:
Counsel:
TF Woods (Applicant)
J Styles (Crown)
Solicitors:
XD LAW
Solicitor for Public Prosecutions (NSW)

File Number(s): 2021/00128389
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 108

Date of Decision:

21 April 2023

Before:

O’Brien AM DCJ

File Number(s):

2021/00128389

JUDGMENT

LEEMING JA: Mr Gavin Daniel Fineff seeks leave to appeal from an aggregate sentence of imprisonment for 9 years, with a non-parole period of 5 years and 4 months, imposed by the District Court following his guilty pleas to 12 counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). Each offence carries a maximum penalty of 10 years imprisonment. There were 12 individual victims who had trusted him with their savings and investments, from whom he took amounts of between $60,000 and $745,000 over a period from October 2016 until March 2020. The total amount of the frauds is $3,355,026.20. Four of the victims were aged between 35-45, two were aged 59 or 60, but six were aged in their 70s or 80s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fineff v The King

Details

AGLC: Fineff v The King [2024] NSWCCA 102
Case: [2024] NSWCCA 102
Decision Date: 17 June 2024

CaseChat Overview and Summary

Fineff v The King involved an appeal against a sentence imposed on the appellant, Fineff, who had been convicted of twelve offences of obtaining financial advantage by deception. The court was required to consider whether the aggregate sentence of nine years imprisonment, with a non-parole period of five years and four months, was manifestly excessive. The appellant had committed fraud amounting to over $3.3 million over a period of three and a half years, targeting many elderly victims, causing them substantial financial harm and emotional distress.

The legal issues before the court were whether the sentence was manifestly excessive and whether the totality of the circumstances, including the appellant’s early plea of guilty and assistance to authorities, warranted a lesser sentence. The court considered the appellant’s subjective circumstances, which were highly favourable, against the objective gravity of the offending, which included the significant financial harm caused to the victims and the prolonged nature of the offending.

The court determined that the sentence was not manifestly excessive. It took into account the appellant's early guilty plea and cooperation with authorities, but emphasised the significant harm caused to the victims and the appellant’s prolonged offending period. The court also compared the sentence with those in comparable cases, finding that the sentence imposed was commensurate with the gravity of the offending. Consequently, the appeal was dismissed, affirming the original sentence.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of nine years imprisonment with a non-parole period of five years and four months was upheld.

Orders