R v Albert - [2019] NSWDC 869

District Court

New South Wales

Medium Neutral Citation: R v Albert [2019] NSWDC 869
Hearing dates: 25/10/19, 20/11/19, 12/12/19
Date of orders: 12 December 2019
Decision date: 12 December 2019
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Aggregate sentence of 10 years imprisonment and a non-parole period of six years and nine months.

Catchwords: Crime – Sentence – Dishonestly obtain financial advantage – Fraud – sham businesses
Legislation Cited: Crimes Act 1900
Trade Practices Act 1974
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Veen v R (No 2) (1988) 164 CLR 465
Category: Sentence
Parties: NSW Director of Public Prosecutions (Crown)
Daniel Kive Albert (Offender)
Representation: Counsel:
Ms D Daleo for the Crown
Mr P Johnson for the Offender

File Number(s): 2017/89194
Publication restriction: None

SENTENCE

Daniel Albert is to be sentenced for 32 counts of dishonestly obtaining a financial advantage contrary to s 192E(1)(b) of the Crimes Act 1900. The maximum penalty for each of those offences is ten years imprisonment and no standard non-parole period applies. Pleas of guilty were entered at Central Local Court on 11 October 2018 and it is accepted, therefore, that the offender is entitled to a discount of 25%.
The offences were committed between September 2011 and April 2016 via four different businesses operated by the offender: those being Glamour Nail, Identical You, Switched on Social, and First Aerial. The offences involve a total of about $4,324,570, which was received from 32 victims.
I intend to impose an aggregate sentence in this matter which I will announce at the end of my remarks. I will, however, as I am required to, indicate the sentences that I would have given with respect to each offence as I deal with the facts relating to that offence. I will then announce the overall aggregate sentence and non-parole period at the end.
Dealing first with the Glamour Nail offences. This business commenced in about September 2011 when the offender and his partner, Kelly Hanna, registered with ASIC the name Glamour Nail Australia Pty Limited. In conducting the business the offender used the name, Daniel Hanna. It was through an internet website that the offender marketed a product which was claimed to be a fully automated nail, that is, fingernail, art vending machine. The business had the appearance of a legitimate enterprise and lawyers were engaged to draw up contracts, office space was obtained and staff were employed. The business was advertised to a national and international market until it ceased trading in 2013. Staff were trained to deal with online inquiries using scripts prepared by the offender which contained a number of false representations. After contact was made by an interested person staff would forward promotional material which itself contained false representations. Once a sale was made and monies received, staff would cease communications with the purchaser and/or subsequent inquiries were directed to the offender.
Between December 2011 and January 2013 the Glamour Nail business received a total of $2,916,370 from investors. I note that these…

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 R v Albert

Details

AGLC: R v Albert [2019] NSWDC 869
Case: [2019] NSWDC 869
Decision Date: 12 December 2019

CaseChat Overview and Summary

The case of R v Albert was heard in the Supreme Court of Victoria. The appellant was convicted of multiple charges relating to fraud, involving the dishonest acquisition of financial advantage through the establishment of sham businesses. The court was tasked with determining an appropriate sentence for the appellant, who had a history of similar offending behaviour.

The legal issues that the court needed to address involved the assessment of the appellant’s criminal history, the nature and extent of the fraud, and the impact of the offending on the victims and the community. The court considered the appellant’s previous convictions for similar offences, the total amount of money defrauded, and the impact of the fraud on the victims, who were often vulnerable individuals. The court also had to consider the need for deterrence and denunciation in sentencing the appellant.

In its reasoning, the court found that the appellant had a persistent pattern of dishonest conduct, which indicated a significant risk of reoffending. The court also emphasised the harm caused to the victims, who were often elderly or otherwise vulnerable, and the broader impact on the community. The court took into account the appellant’s lack of remorse and his failure to make any meaningful efforts to repay the money he had defrauded. The Supreme Court of Victoria ultimately determined that an aggregate sentence of 10 years imprisonment, with a non-parole period of six years and nine months, was appropriate. The court found that this sentence would provide sufficient deterrence and denunciation, while also reflecting the seriousness of the appellant’s offending behaviour.

Orders

Orders of the court

Aggregate sentence of 10 years imprisonment and a non-parole period of six years and nine months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Albert [2019] NSWDC 869
Hearing dates:	25/10/19, 20/11/19, 12/12/19
Date of orders:	12 December 2019
Decision date:	12 December 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Aggregate sentence of 10 years imprisonment and a non-parole period of six years and nine months.
Catchwords:	Crime – Sentence – Dishonestly obtain financial advantage – Fraud – sham businesses
Legislation Cited:	Crimes Act 1900 Trade Practices Act 1974 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Veen v R (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	NSW Director of Public Prosecutions (Crown) Daniel Kive Albert (Offender)
Representation:	Counsel: Ms D Daleo for the Crown Mr P Johnson for the Offender
File Number(s):	2017/89194
Publication restriction:	None