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Nakhl v R (Cth)

Nakhl v R (Cth)

Case [2020] NSWCCA 201 14 August 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nakhl v R (Cth) [2020] NSWCCA 201
Hearing dates: 6 July 2020
Decision date: 14 August 2020
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Adamson J at [189]
Decision:
(1) Leave to appeal granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – eight counts of engaging in dishonest conduct in relation to providing financial services – further four offences of the same kind on a s 16BA schedule – money obtained from individuals – total loss to clients of $5,121,168.00 – losses incurred over a four year period – sentence of 10 years with non-parole period of 6 years imposed – whether sentencing judge erred in assessment of objective seriousness of offending – whether error in assessment of accumulation, concurrency and totality – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

Legislation Cited:
Corporations Act 2001 (Cth) – s 1041G(1)
Crimes Act 1914 (Cth) – s 16BA, s 21B

Cases Cited:
AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Baines v R [2016] NSWCCA 132
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Cahyadi v Regina [2007] NSWCCA 1
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Mulato v Regina [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Ramos v R [2015] NSWCCA 313
Stoeski v Regina [2014] NSWCCA 161

Category: Principal judgment
Parties: Gabriel Nakhl – Applicant
Regina (Cth) – Respondent Crown
Representation:
Counsel:
P Boulten SC – Applicant
LA Fernandez – Respondent Crown
Solicitors:
Elias Gates & Associates Pty Ltd – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2016/259225
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 March 2019

Before:

Baly SC DCJ

File Number(s):

2016/259225

JUDGMENT

BATHURST CJ: I agree with the orders proposed by Hoeben CJ at CL and with his Honour’s reasons.
HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal against the sentence imposed by her Honour Judge Baly SC in the Sydney District Court on 15 March 2019. The applicant was sentenced for eight counts of engaging in dishonest conduct in relation to providing financial services contrary to s 1041G(1) Corporations Act 2001 (Cth). A further four offences of the same kind were taken into account on a schedule pursuant to s 16BA Crimes Act 1914 (Cth) (Crimes Act). A maximum penalty of 10 years imprisonment applied to each count on the indictment. A maximum penalty of 5 years…

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 Nakhl v R (Cth)

Details

AGLC: Nakhl v R (Cth) [2020] NSWCCA 201
Case: [2020] NSWCCA 201
Decision Date: 14 August 2020

CaseChat Overview and Summary

The case of Nakhl v R (Cth) involved the appellant, who was convicted of eight counts of engaging in dishonest conduct in relation to providing financial services, as well as four additional offences of the same kind. The appellant had obtained money from individuals, resulting in a total loss to clients of $5,121,168.00 over a four-year period. The appellant was sentenced to 10 years in prison, with a non-parole period of six years. The appellant appealed the severity of the sentence, arguing that the sentencing judge had erred in assessing the objective seriousness of the offending, as well as the assessment of the accumulation, concurrency, and totality of the offences. The appeal was dismissed, but leave was granted to appeal to a higher court.

The legal issues in this case centred around the assessment of the objective seriousness of the offending, the accumulation, concurrency, and totality of the offences, and whether the sentence was manifestly excessive. The appellant argued that the sentencing judge had erred in each of these areas, and that the sentence imposed was excessive. The Crown, on the other hand, submitted that the sentence was appropriate, and that the sentencing judge had correctly assessed the seriousness of the offending and the relevant principles of sentencing.

The court found that the sentencing judge had not erred in assessing the objective seriousness of the offending, the accumulation, concurrency, and totality of the offences. The court held that the sentence imposed was not manifestly excessive, and that the sentencing judge had correctly considered all relevant factors in determining the appropriate sentence. The court noted that the appellant had committed a significant amount of offending over a prolonged period, and that the total loss to clients was substantial. The court also found that the appellant had shown no remorse for his offending, and had continued to engage in similar offending after his release on bail.

The appeal was dismissed, but leave was granted to appeal to a higher court. The court did not make any final orders in this case, as the matter was to be determined by a higher court. The court's decision in this case provides guidance to sentencing courts when considering the appropriate sentence for offending of this nature, and highlights the importance of considering all relevant factors in determining the appropriate sentence.

Orders