Medium Neutral Citation: R v Fineff [2023] NSWDC 108
Hearing dates: 20 January 2023 & 29 March 2023
Date of orders: 21 April 2023
Decision date: 21 April 2023
Jurisdiction: Criminal
Before: O’Brien AM DCJ
Decision:
See para 279

Catchwords:
SENTENCE- Multiple offences of dishonestly obtaining a financial advantage by deception - 12 victims – total fraud $3,355,026.20 over 3.5 years - early plea of guilty - senior financial advisor in a position of trust – relevant matters in assessing the objective seriousness of fraud offences - rolled up counts/multiple criminal acts – relevance of gambling addiction/disorder - impact on victims - impact of other mental health conditions – no prior criminal history – online gambling and the need for review of incentives provided to gamblers –significant steps towards rehabilitation including engaging in gambling reform – voluntary disclosure of offending and assistance to authorities – totality – comparable cases – special circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Ahmad v R [2021] NSWCCA 30
Bugmy v R (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
DS v R; DM v R [2022] NSWCCA 156
Elias v The Queen (2013) 248 CLR
Hili v The Queen (2010) 242 CLR 520
Johnson v R [2017] NSWCCA 53
McLaren v R [2021] NSWCCA 12
Miller v R [2014] NSWCCA 34
Nakhl v R (Cth) [2020] NSWCCA 201
Osman v R [2020] NSWCCA 78
Paterson v R [2021] NSWCCA 273
R v Dawson [2022] NSWSC 1632
R v Engert (1995) 84 A Crim R 67
R v Ellis (1986) 6 NSWLR 603
R v Fidow [2004] NSWCCA 172
R v Gentz [1999] NSWCCA 285
R v Grossi (2008) 183 A Crim R 15
R v Henry (1999) 46 NSWLR 346
R v Palu [2002] NSWCCA 381
R v Smith [2000] NSWCCA 140
Signato v The Queen (1998) 194 CLR 656
Tepania v R [2018] NSWCCA 247
Valentine v R [2007] NSWCCA 23

Category: Sentence
Parties: Office of the Director of Public Prosecutions
Gavin Daniel Fineff
Representation:
Solicitor: Mr R Murray (for the Director of Public Prosecutions)
Counsel: Mr P Kondich (for the offender)
Solicitors: Duffy Law Group (for the offender)

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

JUDGMENT

Introduction

Gavin Daniel Fineff is 44 years old. He is married and has two young children. In his employment as a financial advisor he had the world at his feet. That was before he committed serious offences of dishonesty for which a sentence must be imposed today.
The offences for which he is to be sentenced are 12 counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act1900, each of which carry a maximum penalty of 10 years imprisonment. There is no standard non-parole period. He offended against 12 individual victims who had trusted him with their savings and investments. His crimes involved frauds of significant sums of…

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 Fineff

Details

AGLC: R v Fineff [2023] NSWDC 108
Case: [2023] NSWDC 108
Decision Date: 21 April 2023

CaseChat Overview and Summary

In the case of R v Fineff, the defendant was charged with multiple offences of dishonestly obtaining a financial advantage by deception, involving 12 victims, with a total fraud amounting to $3,355,026.20 over a period of three and a half years. Fineff, a senior financial advisor who was in a position of trust, pleaded guilty to the charges. The matter was heard in the County Court of Victoria, where the presiding judge had to decide on the appropriate sentence, taking into account various factors such as the objective seriousness of the fraud offences, the impact on the victims, and Fineff's personal circumstances.

The court had to determine the relevant matters in assessing the objective seriousness of the fraud offences, including the rolled up counts of multiple criminal acts. The judge also had to consider the relevance of Fineff's gambling addiction and other mental health conditions in the sentencing process. The court acknowledged that Fineff had no prior criminal history, but highlighted the need to review the incentives provided to gamblers, particularly in the online gambling sector. The judge also took into account Fineff's significant steps towards rehabilitation, including his engagement in gambling reform, voluntary disclosure of his offending, and assistance to the authorities.

In determining the sentence, the court considered the totality of Fineff's offending and the impact on his victims, as well as comparable cases and special circumstances. The judge concluded that the appropriate sentence should reflect the seriousness of the offences, while also taking into account Fineff's efforts towards rehabilitation and the impact of his mental health conditions. The final orders of the court are detailed in paragraph 279 of the judgment.

Orders

Orders of the court

See para 279

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Fineff [2023] NSWDC 108

Most Recent Citation

Fineff v The King [2024] NSWCCA 102

Cases citing this decision · 1 of 1 shown

Fineff v The King
[2024] NSWCCA 102 Para 2

…g that occupied parts of two days, the sentencing judge imposed sentence on 21 April 2023 giving a substantial judgment of 279 paragraphs: R v Fineff [2023] NSWDC 108. Mr Woods, who appeared for the applicant in this Court but not in the District Court, made it clear that he was not critical of any aspect of those…

View all 1 citing cases →

Cases cited in this decision · 21 of 21 shown

R v Dawson
[2022] NSWSC 1632 Para 4

…nd circumstances of the offending, relevant common law principles and the Crimes (Sentencing Procedure) Act . As observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10], “Assessing the objective seriousness of a crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances…
DS v R; DM v R
[2022] NSWCCA 156 Para 236

…his subjective case, mean there is a reduction in his moral culpability and as a result, the objective seriousness of the offences. In DS v R; DM v R [2022] NSWCCA 156 at [63] to [96] the Court, considered the question of whether an assessment of an offender’s “moral culpability” was a necessary part of the determin…
Paterson v R
[2021] NSWCCA 273 Para 236

…e seriousness of an offence,” but that it will not always do so. The Court referred to the decision of Beech-Jones CJ at CL in Paterson v R [2021] NSWCCA 273 where His Honour described objective seriousness and moral culpability as two separate but related concepts of importance to sentencing. He noted that objectiv…
Ahmad v R
[2021] NSWCCA 30 Para 262

…on in R v Ellis (1986) 6 NSWLR 603, noting that these principles are “now embodied in s 23 of the Crimes (Sentencing Procedure) Act”: Ahmad v R [2021] NSWCCA 30 at [24].…
McLaren v R
[2021] NSWCCA 12 Para 273

…Mr Murray for the Crown referred me to McLaren v R [2021] NSWCCA 12. That was a case concerning a fraud of $7.6 million of 15 victims. Mr Murray particularly directed me to paragraphs 83 to 96 of the judgment which set out examples of the sentences imposed for fraud type offences in 13 other cases decided in both t…
Nakhl v R (Cth)
[2020] NSWCCA 201 Para 272

…Mr Kondich for the offender referred me to Nakhl v R (Cth) [2020] NSWCCA 201. That was a case concerning a $5.1 million fraud by a financial services provider. It involved 12 victims, 8 principal counts and 4 counts on a s 16BA schedule. At first instance the District Court judge imposed a sentence comprising a tota…
Osman v R
[2020] NSWCCA 78 Para 269

…In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] ff, with whom Johnson and Price JJ agreed, set out the relevant principles in respect of totality. In imposing sentence I will seek to give effect to these principles. In brief summary they are:…
Tepania v The Queen
[2018] NSWCCA 247 Para 236

…lity is concerned with an offender’s moral blameworthiness for an offence. He went on to reiterate what Johnson J had said in Tepania v R [2018] NSWCCA 247, that in assessing the objective seriousness of an offence regard may be had to factors personal to the offender that are causally connected with or materially c…
Johnston v R
[2017] NSWCCA 53 Para 235

…tters such as impulsivity and planning, and the capacity of an offender to exercise judgment: R v Henry (1999) 46 NSWLR 346 at [273]; Johnson v R [2017] NSWCCA 53 per Bathurst CJ at [41].…
Miller v R
[2014] NSWCCA 34

…e Queen (2013) 248 CLR Hili v The Queen (2010) 242 CLR 520 Johnson v R [2017] NSWCCA 53 McLaren v R [2021] NSWCCA 12 Miller v R [2014] NSWCCA 34 Nakhl v R (Cth) [2020] NSWCCA 201 Osman v R [2020] NSWCCA 78 Paterson v R [2021] NSWCCA 273 R v Dawson [2022] NSWSC 1632 R v Engert (1995) 84 A Crim R 67 R v Ellis (1986)…
Bugmy v The Queen
[2013] HCA 37

…ion Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Ahmad v R [2021] NSWCCA 30 Bugmy v R (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 DS v R; DM v R [2022] NSWCCA 156 Elias v The Queen (2013) 248 CLR Hili v The Queen (2010) 242 CLR 520…
Elias v The Queen
[2013] HCA 31 Para 7

…’s subjective circumstances. As a result, there is no such thing as a single correct sentence. As emphasised by the High Court in Elias v The Queen (2013) 248 CLR 483 at [27]:…
Hili v The Queen
[2010] HCA 45 Para 270

…ave considered all the cases to which I was referred bearing in mind the limitations in doing so which the High Court referred to in Hili v The Queen (2010) 242 CLR 520. Courts should seek to promote consistency in sentencing, and in doing so it is generally important for them to have regard to what has been done in…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…9 (NSW) Cases Cited: Ahmad v R [2021] NSWCCA 30 Bugmy v R (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 DS v R; DM v R [2022] NSWCCA 156 Elias v The Queen (2013) 248 CLR Hili v The Queen (2010) 242 CLR 520 Johnson v R [2017] NSWCCA 53 McLaren v R [2021] NSWCCA 12 Miller v R…
Valentine v Regina
[2007] NSWCCA 23 Para 267

…on account of his voluntary disclosure. The extent of any leniency will however be influenced by the likelihood of impending discovery: Valentine v R [2007] NSWCCA 23 at [35]. In my assessment the extent of further leniency should be modest, and in all the circumstances I propose to allow a further discrete discoun…
R v Fidow
[2004] NSWCCA 172 Para 277

…ng that period I must avoid counting again features of the offender’s subjective case I have taken into account in fixing the total term: R v Fidow [2004] NSWCCA 172 at [18]. Notwithstanding the existence of special circumstances, I am not permitted to reduce the non-parole period below what is necessary to punish t…
R v Palu
[2002] NSWCCA 381

…v Fidow [2004] NSWCCA 172 R v Gentz [1999] NSWCCA 285 R v Grossi (2008) 183 A Crim R 15 R v Henry (1999) 46 NSWLR 346 R v Palu [2002] NSWCCA 381 R v Smith [2000] NSWCCA 140 Signato v The Queen (1998) 194 CLR 656 Tepania v R [2018] NSWCCA 247 Valentine v R [2007] NSWCCA 23 Category: Sentence Parties: Office of the D…
R v Smith
[2000] NSWCCA 140 Para 246

…ms in the sum of $45,000 he was no longer a first offender and someone of good character, albeit his offending had not yet been discovered: R v Smith [2000] NSWCCA 140. I bear in mind the offender was in a position of trust, on account of his good character and his lack of prior criminal convictions, and that good c…
R v Gentz
[1999] NSWCCA 285 Para 246

…good character assisted him in the commission of the offences by providing him with the opportunity to be appointed to a position of trust: R v Gentz [1999] NSWCCA 285. In addition, offences of this type are frequently committed by persons of good character. In considering this aspect I also have regard to the fact…
R v Henry
[1999] NSWCA 111 Para 235

…ded evidence is available which goes to matters such as impulsivity and planning, and the capacity of an offender to exercise judgment: R v Henry (1999) 46 NSWLR 346 at [273]; Johnson v R [2017] NSWCCA 53 per Bathurst CJ at [41].…
Siganto v the Queen
[1998] HCA 74

…(2008) 183 A Crim R 15 R v Henry (1999) 46 NSWLR 346 R v Palu [2002] NSWCCA 381 R v Smith [2000] NSWCCA 140 Signato v The Queen (1998) 194 CLR 656 Tepania v R [2018] NSWCCA 247 Valentine v R [2007] NSWCCA 23 Category: Sentence Parties: Office of the Director of Public Prosecutions Gavin Daniel Fineff Representation:…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 2)

Medium Neutral Citation:	R v Fineff [2023] NSWDC 108
Hearing dates:	20 January 2023 & 29 March 2023
Date of orders:	21 April 2023
Decision date:	21 April 2023
Jurisdiction:	Criminal
Before:	O’Brien AM DCJ
Decision:	See para 279
Catchwords:	SENTENCE- Multiple offences of dishonestly obtaining a financial advantage by deception - 12 victims – total fraud $3,355,026.20 over 3.5 years - early plea of guilty - senior financial advisor in a position of trust – relevant matters in assessing the objective seriousness of fraud offences - rolled up counts/multiple criminal acts – relevance of gambling addiction/disorder - impact on victims - impact of other mental health conditions – no prior criminal history – online gambling and the need for review of incentives provided to gamblers –significant steps towards rehabilitation including engaging in gambling reform – voluntary disclosure of offending and assistance to authorities – totality – comparable cases – special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Ahmad v R [2021] NSWCCA 30 Bugmy v R (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 DS v R; DM v R [2022] NSWCCA 156 Elias v The Queen (2013) 248 CLR Hili v The Queen (2010) 242 CLR 520 Johnson v R [2017] NSWCCA 53 McLaren v R [2021] NSWCCA 12 Miller v R [2014] NSWCCA 34 Nakhl v R (Cth) [2020] NSWCCA 201 Osman v R [2020] NSWCCA 78 Paterson v R [2021] NSWCCA 273 R v Dawson [2022] NSWSC 1632 R v Engert (1995) 84 A Crim R 67 R v Ellis (1986) 6 NSWLR 603 R v Fidow [2004] NSWCCA 172 R v Gentz [1999] NSWCCA 285 R v Grossi (2008) 183 A Crim R 15 R v Henry (1999) 46 NSWLR 346 R v Palu [2002] NSWCCA 381 R v Smith [2000] NSWCCA 140 Signato v The Queen (1998) 194 CLR 656 Tepania v R [2018] NSWCCA 247 Valentine v R [2007] NSWCCA 23
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions Gavin Daniel Fineff
Representation:	Solicitor: Mr R Murray (for the Director of Public Prosecutions) Counsel: Mr P Kondich (for the offender) Solicitors: Duffy Law Group (for the offender)
File Number(s):	2021/00128389
Publication restriction:	Nil