R v Suleman

[2007] NSWDC 75

CITATION:	R v Suleman [2007] NSWDC 75
HEARING DATE(S):	30 November, 1 December 2006
JUDGMENT DATE:	24 January 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nield DCJ
DECISION:	See paragraph 55
CATCHWORDS:	Criminal law - sentence after guilty pleas - making a false statement to obtain money contrary to s.178BB Crimes Act - using a false instrument contrary to s.300(2) Crimes Act - multiple offences
LEGISLATION CITED:	Crimes Act; s.178BB, s.300(2) Crimes (Sentencing Procedure) Act 1999; s.3A, s21A
PARTIES:	Regina Karl Suleman
FILE NUMBER(S):	05/11/0175; 05/71/0731
COUNSEL:	Mr D. Jordan (for Commonwealth DPP) Mr P. Zahra SC with Mr M. Pickin (for Offender)
SOLICITORS:	Commonwealth DPP Legal Aid Commission of NSW

JUDGMENT

HIS HONOUR: As to the sentencing of Karl Suleman.

1 The offender is Karl Suleman. He was born in Baghdad, Iraq, on 16 April 1961. He committed the offences, for which I am to impose sentences upon him, between April 2000 and July 2001. Accordingly, he was aged between thirty-nine years and forty years three months when he committed the offences and he is aged forty five years nine months now.

2 The offender is the only child of his parents. His father was a pilot in the Iraqi Air Force. Unfortunately, his father died during 1963 when his aircraft crashed while he was on active service. The offender does not have any memory of his father. He was raised by his mother.

3 The offender’s mother migrated to Australia during 1976, bringing the offender with her. He has lived in Australia since 1976. He is, so far as I am aware, a naturalised Australian citizen.

4 The offender attended primary and secondary schools in Iraq before leaving there to come to Australia and he attended Fairfield Boys High School after arriving in Australia. He completed Year 11 at high school. He did not obtain the Higher School Certificate.

5 After leaving school, the offender obtained employment as a factory hand, which employment he had until 1985 when he injured his back in the course of his employment. As well as this employment, he pursued a musical career, albeit part time, as a drummer, achieving some success until closing this career during 1989.

6 During 1988 the offender married. He and his wife are the parents of two children, a daughter aged fourteen years and a son aged eleven years. He is, so far as I am aware, estranged from his wife. His children live with his wife. He has minimal contact with his children.

7 During 1989 the offender purchased, either alone or in partnership, and I do not know which, a 7-Eleven convenience store. As he was successful in managing this store, he purchased another store and he was successful in managing both stores. He sold his interest in these stores during 1992.

8 During 1993, after selling his interest in the 7-Eleven stores, the offender established a business collecting trolleys, which had been used by supermarket customers to transport groceries and such like from the supermarket to their cars, from where the trolleys had been left by customers. He was successful in this business. However, ultimately, his view of his success in this business led to his downfall.

9 In December 1999 the offender incorporated Karl Suleman Enterprises Pty Limited. This company took over the operation of the offender’s trolley collection business. This company had an issued share capital of $2, with the offender and his wife each holding one $1 share. The offender was the company’s only director.

10 From at least April 2000 until at least July 2001 the offender accepted investments, as he called them, from the public, particularly members of the Assyrian community, in the trolley collection business operated by Karl Suleman Enterprises Pty Limited. An investor's investment in the trolley collection business was to be evidenced by a document called a “Financial Investment Agreement”. In the agreement, Karl Suleman Enterprises Pty Limited was called "the manager", the trolley collection business was called "the business" and the investor was called "the investor". The agreement was to be for a period of years, which period varied between three and fifteen years. By the agreement, Karl Suleman Enterprises Pty Limited was to pay to the investor a guaranteed amount of money every fortnight from the income of the trolley collection business for the duration of the agreement.

11 On 10 April 2000 Karl Suleman Enterprises Pty Limited and Soldoz Pty Limited entered into an investment agreement whereby Soldoz Pty Limited invested $140,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited with Franklins at Beenleigh and Biggera Waters in Queensland and Karl Suleman Enterprises Pty Limited agreed to pay to Soldoz Pty Limited $4,100 per fortnight from the income of the business at those places for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. However, Karl Suleman Enterprises Pty Limited did not have any agreement with Franklins for collection of its trolleys at Beenleigh or Biggera Waters. Nonetheless, between 10 April 2000 and 12 November 2001 Karl Suleman Enterprises Pty Limited made thirty six fortnightly payments of $4,100, amounting to $147,000, to Soldoz Pty Limited, with the result that it did not lose any of its investment. This investment resulted in count 1 of the indictment.

12 On 14 April 2000 Karl Suleman Enterprises Pty Limited and Billington Family Trust, trading as Cedar House Alpaca Stud, entered into an investment agreement whereby Billington Family Trust invested $1,000,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited with various supermarkets in places in both Queensland and New South Wales and Karl Suleman Enterprises Pty Limited agreed to pay to Billington Family Trust $25,000 per fortnight from the income of the businesses at those places for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. However, Karl Suleman Enterprises Pty Limited did not have any agreement with those supermarkets for collection of their trolleys at those places. Nonetheless, between 10 April 2000 and 20 November 2001 Karl Suleman Enterprises Pty Limited made forty four fortnightly payments of $25,000, amounting to $1,100,000, to Billington Family Trust, with the result that the trust did not lose any of its investment. This investment resulted in count 2 of the indictment.

13 In order to induce Billington Family Trust to enter into the said investment agreement, and thereby to invest $1,000,000, the offender, on behalf of Karl Suleman Enterprises Pty Limited, provided Billington Family Trust with documents purporting to be agreements between Karl Suleman Enterprises Pty Limited and the named supermarkets for the collection of their trolleys at the specified places. These documents were false. These documents were created by the offender. These documents resulted in counts 16 to 26 of the indictment.

14 On 30 April 2001 Karl Suleman Enterprises Pty Limited and Mr Terrence Smith entered into an investment agreement where by Mr Smith invested $100,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr Smith $5,000 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 30 April 2001 and 12 November 2001 Karl Suleman Enterprises Pty Limited made fourteen fortnightly payments of $5,000, amounting to $70,000, to Mr Smith, with the result that Mr Smith lost $30,000 on his investment. This investment resulted in count 3 of the indictment.

15 On 30 April 2001 Karl Suleman Enterprises Pty Limited and Mr Charles Howil and Ms Simira Youkhana entered into an investment agreement whereby Mr Howil and Ms Youkhana invested $100,000 each in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr Howil and to Ms Youkhana $10,000 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 11 May 2001 and 12 November 2001 Karl Suleman Enterprises Pty Limited made fourteen fortnightly payments of $5,000, amounting to $70,000, to each of Mr Howil and Ms Youkhana, with the result that each of them lost $30,000 on their investment. This investment resulted in count 4 of the indictment.

16 On 10 March 2001 Karl Suleman Enterprises Pty Limited and Mr Andrew Rohan entered into an investment agreement whereby Mr Rohan invested $150,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr Rohan $4,500 per fortnight from the income of the business for five years. However, during May 2001 Karl Suleman Enterprises Pty Limited and Mr Rohan entered into another agreement whereby Mr Rohan increased his investment to $200,000 and Karl Suleman Enterprises Pty Limited agreed to pay to Mr Rohan $12,000 per fortnight for ten years. Between 23 March 2001 and 18 May 2001 Karl Suleman Enterprises Pty Limited made five fortnightly payments of $4,500 and between 16 May 2001 and 11 November 2001 it made eleven fortnightly payments of $12,000, amounting to $154,500, to Mr Rohan, with the result that Mr Rohan lost $55,500 on his investment. This investment resulted in count 5 of the indictment.

17 On 14 May 2001 Karl Suleman Enterprises Pty Limited and Pace Partners Pty Limited entered into an investment agreement whereby Pace Partners Pty Limited invested $500,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Pace Partners Pty Limited $25,000 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 30 May 2001 and 11 November 2001 Karl Suleman Enterprises Pty Limited made thirteen fortnightly payments of $25,000, amounting to $325,000, to Pace Partners Pty Limited. Subsequently, the liquidator of Karl Suleman Enterprises Pty Limited paid $4,375 to Pace Partners Pty Limited. Accordingly, Pace Partners Pty Limited lost $170,625 on its investment. This investment resulted in count 6 of the indictment.

18 On 4 June 2001 Karl Suleman Enterprises Pty Limited and Mr Norair Sarkez entered into an investment agreement whereby Mr Sarkez invested $100,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr Sarkez $5,200 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 15 June 2001 and 6 November 2001 Karl Suleman Enterprises Pty Limited made eleven fortnightly payments of $5,200, amounting to $57,200, to Mr Sarkez. Subsequently the liquidator of Karl Suleman Enterprises Pty Limited paid $1,070 to Mr Sarkez. Accordingly, Mr Sarkez lost $41,730 on his investment. This investment resulted in count 7 of the indictment.

19 On 5 June 2001 Karl Suleman Enterprises Pty Limited and Mr and Mrs Madlen and Sargon Rashed entered into an investment agreement whereby they invested $100,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to them $5,000 per fortnight from the income of the business. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 15 June 2001 and 6 November 2001 Karl Suleman Enterprises Pty Limited made eleven fortnightly payments of $5,000, amounting to $55,000, to Mr and Mrs Rashed. Subsequently the liquidator of Karl Suleman Enterprises Pty Limited paid $1,125 to the Rasheds. Accordingly, the Rasheds lost $43,875 on their investment. This investment resulted in count 8 of the indictment.

20 On 25 June 2001 Karl Suleman Enterprises Pty Limited and Mr and Mrs Trudy and Robert Zanella entered into an investment agreement whereby Mr and Mrs Zanella invested $100,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr and Mrs Zanella $4,000 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 6 July and 12 November 2001 Karl Suleman Enterprises Pty Limited made ten fortnightly payments of $4,000, amounting to $40,000, to Mr and Mrs Zanella. Subsequently, the liquidator of Karl Suleman Enterprises Pty Limited paid $2,000 to Mr and Mrs Zanella. Accordingly, Mr and Mrs Zanella lost $58,000 on their investment. This investment resulted in count 9 of the indictment.

21 On 25 June 2001 Karl Suleman Enterprises Pty Limited and Mr and Mrs Kathleen and Ashoor Isaac entered into an investment agreement whereby Mr and Mrs Isaac invested $200,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr and Mrs Isaac $10,000 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 6 July 2001 and 12 November 2001 Karl Suleman Enterprises Pty Limited made ten fortnightly payments of $10,000, amounting to $100,000, to Mr and Mrs Isaac. Subsequently, the liquidator of Karl Suleman Enterprises Pty Limited paid $2,500 to Mr and Mrs Isaac. Accordingly, Mr and Mrs Isaac lost $97,500 on their investment. This investment resulted in count 10 of the indictment.

22 On 25 June 2001 Karl Suleman Enterprises Pty Limited and Mr Sahar Miraziz entered into an investment agreement whereby Mr Miraziz invested $142,000, although the amount stated in the agreement is $150,000, in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr Miraziz $8,250 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 6 July 2001 and 22 October 2001 Karl Suleman Enterprises Pty Limited made nine fortnightly payments, varying between $8,250 and $9,200, amounting in all to $78,300, to Mr Miraziz. Accordingly, Mr Miraziz lost $78,300 on his investment. This investment resulted in count 11 of the indictment.

23 On 3 July 3001 Karl Suleman Enterprises Pty Limited and Ms Waijo Kaia entered into an investment agreement whereby Ms Kaia invested $100,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Ms Kaia $5,000 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 27 July 2001 and 5 November 2001 Karl Suleman Enterprises Pty Limited made eight fortnightly payments of $5,000, amounting to $40,000, to Ms Kaia. Accordingly, Miss Kaia lost $60,000 on her investment. This investment resulted in count 12 of the indictment.

24 On 9 July 2001 Karl Suleman Enterprises Pty Limited and Zax Office Services Pty Limited entered into an investment agreement whereby Zax Office Services Pty Limited invested $100,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Zax Office Services Pty. Limited $8,000 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 20 July 2001 and 12 November 2001 Karl Suleman Enterprises Pty Limited made nine fortnightly payments of $8,000, amounting to $72,000, to Zax Office Services Pty Limited, with the result that Zax Office Services Pty Limited lost $28,000 on its investment. This investment resulted in count 13 of the indictment.

25 On 13 July 2001 Karl Suleman Enterprises Pty Limited and Mr Fred Miraziz entered into an investment agreement where by Mr Miraziz invested $95,000, although the amount stated in the agreement is an amount of $100,000, in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mr Miraziz $5,500 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 30 July 2001 and 6 November 2001 Karl Suleman Enterprises Pty Limited made eight fortnightly payments of $5,500, amounting to $44,000, to Mr Miraziz. Subsequently, the liquidator of Karl Suleman Enterprises Pty Limited paid $1,275 to Mr Miraziz. Accordingly, Mr Miraziz lost $49,725 on his investment. This investment resulted in count 14 of the indictment.

26 On 13 July 2001 Karl Suleman Enterprises Pty Limited and Mighty Motors Pty Limited entered into an investment agreement whereby Mighty Motors Pty Limited invested $100,000 in the trolley collection business operated by Karl Suleman Enterprises Pty Limited and Karl Suleman Enterprises Pty Limited agreed to pay to Mighty Motors Pty Limited $5,300 per fortnight from the income of the business for the duration of the agreement. The offender signed the agreement on behalf of Karl Suleman Enterprises Pty Limited. Between 27 July 2001 and 6 November 2001 Karl Suleman Enterprises Pty Limited made eight fortnightly payments of $5,300, totalling $42,400, to Mighty Motors Pty. Limited. Subsequently, the liquidator of Karl Suleman Enterprises Pty Limited paid $1,440 to Mighty Motors Pty Limited. Accordingly, Mighty Motors Pty Limited lost $56,160 on its investment. This investment resulted in count 15 of the indictment.

27 In the result between April 2000 and July 2001 the fifteen investors invested a total of $3,185,000 in Karl Suleman Enterprises Pty Limited. Of these investors, two of them did not lose any of their investment and the other thirteen of them lost a total of $828,915.

28 I do not have any doubt that the offender knew, at the times when he signed the agreements on behalf of Karl Suleman Enterprises Pty Limited, that the income being generated by the trolley collection business being operated by Karl Suleman Enterprises Pty Limited was insufficient to meet the payments guaranteed by the agreements. Also, I do not have any doubt that the offender knew, when he arranged for the various documents to be provided to the Billington Family Trust, that the documents were false, because he had himself created those documents.

29 Towards the end of July 2001 the offender engaged Mr Terrence Griffiths as a management consultant to advise him on his proposed float of a group of companies associated with him. This group of companies was known as the Froggy Group. The offender hoped that the float of the Froggy Group of companies would raise sufficient funds to allow him to repay the investors in Karl Suleman Enterprises Pty Limited. The involvement of Mr Griffiths with the offender is detailed in Mr Griffiths’ statement 10 April 2000 and his evidence given on 30 November 2006. The involvement of Mr Griffiths with the offender came to an end on 5 October 2001.

30 I do not see the evidence of Mr Griffiths to be particularly relevant or particularly helpful. The offender had committed the subject offences, except perhaps the last of them, before he engaged Mr Griffiths to advise him on his proposed float of the Froggy Group of companies and, therefore, I consider that his hope, in so far as the investors in Karl Suleman Enterprises Pty Limited was concerned, does not exculpate or absolve him from his criminal responsibility for those offences. Although Mr Griffiths thought that the offender was an engaging, intelligent, popular, street smart but naïve man who relied on the advice of others, I consider that it is obvious that the offender knew, at the time that he signed the various investments agreements on behalf of Karl Suleman Enterprises Pty Limited, that the income being generated by the trolley collection business was significantly insufficient to pay the guaranteed amounts to the investors.

31 On 12 November 2001 Mr Neil Cussen and Mr Paul Weston were appointed joint administrators of Karl Suleman Enterprises Pty Limited and on 7 December 2001 they were appointed joint liquidators of Karl Suleman Enterprises Pty Limited.

32 On 16 May 2002 the liquidators published their report to the creditors of Karl Suleman Enterprises Pty Limited. This report covered the period from 1 July 2000 to 31 March 2002. During this period, the trolley collection business of Karl Suleman Enterprises Pty Limited generated a total gross income of $5,941,763, which produced a total net profit of $275,096. This total net profit resulted in an average net fortnightly profit of $7,750. However, Karl Suleman Enterprises Pty Limited had agreed to pay a total of $137,350 per fortnight to the fifteen investors referred to above. It is obvious, as I said during submissions as to sentence, that the offender was using the money that he had obtained from later investors to pay the guaranteed payments to earlier investors.

33 On 15 April 2004 the offender was dealt with by a judge of this court for one offence committed during December 2000 of using an instrument known to be false to induce a person to accept the instrument as genuine and to do some act to that person’s prejudice, contrary to s 300 subs (2) of the Crimes Act, and for three offences, one committed during March 2001 and the others committed during October 2001, of making a statement known to be false in a material particular to obtain a financial advantage for himself, contrary to s 178BB subs (1) of the Crimes Act. The circumstance in which the offender committed the offences are set out in the judge’s reasons for sentence, exhibit C. The first offence related to the offender’s use of a false instrument, which he himself had created, to obtain a loan of $335,000 to purchase a Ferrari Spyder car. The second offence related to the offender’s false statement on an application to borrow $2,300,000 to purchase a motor yacht for $3,300,000. The third and fourth offences related to the offender’s statements on applications to borrow $250,000 to purchase a Ferrari Modena sports car. The offender was sentenced to imprisonment for an overall period of one year nine months, with a non-parole period of twelve months from 5 March 2004 to 4 March 2005 and a parole period of nine months from 5 March 2005 to 4 December 2005. He was released from prison, so far as I am aware, on 4 March 2005.

34 On 24 September 2004 the offender was interviewed by police about the investments by the fifteen investors in Karl Suleman Enterprises Pty Limited. Some of the offender’s answers to questions asked of him are recorded in the statement of agreed facts, exhibit A. In some of his answers, the offender accused his solicitor of, at best, poor advice or, at worst, complicity in the offences. As I said during submissions as to sentence, I am not prepared to accept the offender’s accusations against his former solicitor without his former solicitor being given the opportunity to answer those accusations.

35 On 2 February 2005 police filed twenty-six Court Attendance Notices, one for each of the subject offences, in the Central Sydney Local Court for the attendance of the offender before that court on 2 March 2005 to answer the charges. The Court Attendance Notices were served on the offender on 3 February 2005.

36 In due course, on 26 July 2005 the offender appeared before a magistrate in the Central Sydney Local Court, he having agreed to dispense with a committal hearing, and he was committed to appear in this court on 12 August 2005 for arraignment with the charges.

37 Accordingly, in due course, on 1 May 2006 the offender appeared in this court for arraignment with the charges. On being arraigned, he pleaded guilty to each of the twenty-six offences. He was remanded in custody, bail not being applied for, to a later date for sentencing. I consider that the offender is entitled to a discount in sentence of fifteen per cent on account of his guilty pleas, those pleas not having been given at an earlier point of time.

38 In due course, on 30 November 2006 the offender appeared before me on the sentencing proceedings. Over two days I received documentary material from the Crown Prosecutor and the offender’s counsel and I heard evidence from Mr Weston, one of the joint liquidators of Karl Suleman Enterprises Pty Limited, called by the Crown prosecutor and Mr Griffiths called by the offender’s counsel and submissions as to sentence from the Crown Prosecutor and the offender’s counsel, after which I stood over the sentencing of the offender to today.

39 I am now to impose sentences upon the offender for each of the subject offences.

40 The offences referred to in counts 1 to 15 inclusive of the indictment are offences of making a statement known to be false in a material particular to obtain money for Karl Suleman Enterprises Pty Limited, contrary to s 178BB of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of five years when dealt with on indictment or imprisonment for a maximum of two years if dealt with summarily.

41 The offences referred to in counts 16 to 26 inclusive of the indictment are offences of using an instrument known to be false to induce a person to accept the instrument as genuine and to do some act to that person’s prejudice, contrary to s 300 subs (2) of the Crimes Act, for which the prescribed penalty is imprisonment for a maximum of ten years when dealt with on indictment or imprisonment for a maximum of two years if dealt with summarily.

42 The offences committed by the offender are beyond argument serious offences. They are offences that may be described by the term “white collar crime”. However, to so describe the offences does not reduce the seriousness of them or the offender’s criminal responsibility for them. They were deliberate and planned offences, particularly the offences related to the Billington Family Trust. They, other than those related to the Billington Family Trust, were committed upon commercially naïve people. They involved a breach of trust that the investors, particularly those within the Assyrian community, had in the offender. They were committed without regard to the obvious likelihood that the later investors would lose some, if not all, of their money. They resulted in all but two of the investors losing money. They were committed by the offender to obtain money so that he could live a lifestyle far beyond his legitimate income, thereby increasing, at least in his own mind, his popularity and standing in the community generally and in the Assyrian community particularly.

43 The offender’s counsel submitted that the offender’s criminal responsibility for the offences was reduced by his intention to repay the investments to the investors from whatever he received from the float of the Froggy Group of companies. I do not agree. I cannot see anything in the evidence to show that before, at latest, April 2000 the offender had obtained any appropriate advice from any competent person as to the value of the Froggy Group of companies. Moreover, I do not overlook the obvious. The investors were offered investment in Karl Suleman Enterprises Pty Limited, not one or other of the companies in the Froggy Group. I consider that it is obvious that the offender used Karl Suleman Enterprises Pty Limited as a cash cow to fund his lifestyle and the public profile of the Froggy Group of companies. As it transpired, the Froggy Group of companies owed about $8,000,000 to Karl Suleman Enterprises Pty Limited at the time of liquidation of the Froggy Group of companies.

44 The offender’s counsel submitted also that the offender’s criminal responsibility for the offences was reduced by his reliance on the advice given him by others such as his accountant and his solicitor. I do not agree. I cannot see anything in the evidence to show that the offender relied in his dealings with the various investors on the advice given to him by anybody about anything. I do not doubt that he spoke to other people about what he was doing, but the evidence does not show that he was given any advice by any of those people. In any event, and notwithstanding the view of Mr Griffiths, I doubt that the offender would have accepted anyone’s advice about anything if he did not agree with that advice.

45 The offender’s counsel submitted that the delay between the offender’s commission of the offences and his being charged with them is a mitigating factor. I accept that there had been some delay between May 2002 when the liquidators published their report to creditors of Karl Suleman Enterprises Pty Limited and, firstly, 24 September 2004 when the police interviewed the offender about the offences and, later, 3 May 2005 when the offender was served with the Court Attendance Notices related to the offences. However I do not see the delay between the publication of the liquidators' report to creditors and the charging of the offender with the offences as unusual or inordinate. The full extent of the offender’s criminality did not become known until the liquidators had completed their investigation into the affairs of Karl Suleman Enterprises Pty Limited and the need for a faster investigation by police did not exist as the offender was serving a sentence of imprisonment between 5 March 2004 and 4 March 2005.

46 In determining appropriate sentences to impose upon the offender for the subject offences, I must recognise the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act and I must take into account such of the aggravating factors referred to in s 21A subs (2) of the Act as are present and such of the mitigating factors referred to in subs (3) of that section as are present and any other relevant factor.

47 I consider that, having regard to what I have said about the offences and the offender, the aggravating factors are those lettered (g) because, in relation to counts 3 to 15 inclusive, the amounts of money lost by the investigators was in each case substantial, (k) because of the offender’s breach of trust and (n) because the offences were deliberate and planned offences, and that the mitigating factors are those lettered (i) because the offender’s guilty pleas show his remorse and (k) because of his guilty pleas.

48 As to the prospects for the offender’s rehabilitation and the likelihood of his not re-offending, the evidence is silent. I do not know what the offender did between 4 March 2005, when he was released from prison after serving the sentences imposed upon him on 15 April 2004, and 1 May 2006, when on arraignment he pleaded guilty to the subject offences, after which he was committed to prison pending sentencing. I do not know what support if any he will have available to him on his release from prison. However, I know that all his offending occurred between April 2000 and October 2001 and related to his involvement in Karl Suleman Enterprises Pty Limited and the Froggy Group of companies. Also, I know that he has been declared bankrupt. Therefore, as I doubt that he will ever again be in a position to obtain money from anybody, I suppose that there is a reasonable prospect for his rehabilitation and a reasonable likelihood that he will not re-offend.

49 One factor not mentioned in s 21A of the Crimes (Sentencing Procedure) Act is deterrence. Although I see personal deterrence to be of less importance in this case than it might be in another case, because I doubt that the offender will re-offend, or at least there is a reasonable prospect that he will not re-offend, I see general deterrence to be important, something that cannot be ignored or under-valued, because offences of the kind committed by the offender are difficult to detect, costly and time consuming to investigate and often result in significant financial loss to members of the public.

50 What, then, having regard to what I have said a bout the offences and the offender are appropriate sentences to impose upon the offender for those offences?

51 I have determined, balancing the purposes of sentencing, the objective features of the offences, the subjective features of the offender and the aggravating and mitigating factors, to all of which I have referred, that for the offences contrary to s 178BB of the Crimes Act, those referred to in counts 1 to 15 of the indictment, the starting point is imprisonment for three years six months, and for the offences contrary to s 300 subs (2) of the Crimes Act, those referred to in counts 16 to 26 of the indictment, the starting point, because those offences were used in conjunction with the offence referred to in count 2 of the indictment, is imprisonment for three years. I reduce the period of three years six months by fifteen per cent, which, for ease of calculation, is seven months, to two years eleven months, and the period of three years by fifteen per cent, which, again for ease of calculation, is six months, to two years six months. Absent a special circumstance, a sentence of imprisonment for two years eleven months would be divided into a non parole period of two years two months seven days and a parole period of eight months twenty one days, and a sentence of imprisonment for two years six months would be divided into a non parole period of one year ten months fourteen days and a parole period of seven months fourteen days.

52 As to special circumstances, the offender’s counsel submitted that the offender’s state of mental health, as revealed by the report of Dr Whitten, exhibit 2, and the report of Dr Westmore, exhibit 3, although Dr Whitten’s report is somewhat dated, is a special circumstance which warranted a variation in the otherwise statutory ratio between the non parole period and the parole period of the sentence. Although I accept that the offender is, not unexpectedly, depressed by the situation into which he has put himself, I do not see his depression as a special circumstance, as there is nothing in the evidence to suggest that his depression will make prison life more onerous than it should be.

53 As to whether the sentences should be served concurrently or consecutively or partly concurrently and partly consecutively, I consider that, as the offences were separate and distinct offences, although the offences referred to in counts 16 to 26 are related to the offence referred to in count 2 of the indictment, the sentences for the offences contrary to s 178BB of the Crimes Act, those referred to in counts 1 to 15 inclusive of the indictment, should be served partly concurrently and partly consecutively, and that the sentences for the offences contrary to s 300 subs (2) of the Crimes Act, those referred to in counts 16 to 26 of the indictment, should be served concurrently with each other and partly consecutively with the other sentences. However, in view of what I will say as to totality, this result cannot be achieved.

54 As to totality, I consider that to reflect the offender’s criminality for the twenty-six offences, and to punish him properly for those offences, the offender should serve a total sentence of seven years four months with a total non parole period of five years six months and a parole period of one year ten months. To achieve this result, I propose to impose upon the offender sentences of imprisonment for a fixed period in relation to counts 1 to 14 inclusive and counts 16 to 26 inclusive of the indictment, and for a period divided into a non parole period and a parole period in relation to count 15 of the indictment. For ease of division of the overall non parole period of five years six months among the offences, the actual sentences that I will impose upon the offender in relation to counts 1 to 14 inclusive and 16 to 26 inclusive of the indictment will be less than the periods calculated in para 51 above.

55 Accordingly, Karl Suleman, for each of the twenty-six offences to which you have pleaded that you are guilty, you are convicted. I sentence you as follows:

Count 1. Imprisonment for one year six months from 1 May 2006 to 31 October 2007.

Count 2. Imprisonment for one year six months from 1 May 2006 to 31 October 2007.

Counts 16 to 26 inclusive. Imprisonment for nine months from 1 May 2006 to 31 January 2007.

Count 3. Imprisonment for one year six months from 1 August 2006 to 31 January 2008.

Count 4. Imprisonment for one year six months from 1 August 2006 to 31 January 2008.

Count 5. Imprisonment for one year six months from 1 November 2007 to 30 April 2009.

Count 6. Imprisonment for one year six months from 1 November 2007 to 30 April 2009.

Count 7. Imprisonment for one year six months from 1 February 2008 to 31 July 2009.

Count 8. Imprisonment for one year six months from 1 February 2008 to 31 July 2009.

Count 9. Imprisonment for one year six months from 1 February 2008 to 31 July 2009.

Count 10. Imprisonment for one year six months from 1 May 2008 to 31 October 2009.

Count 11. Imprisonment for one year six months from 1 May 2008 to 31 October 2009.

Count 12. Imprisonment for one year six months from 1 August 2009 to 31 January 2011.

Count 13. Imprisonment for one year six months from 1 August 2009 to 31 January 2011.

Count 14. Imprisonment for one year six months from 1 February 2010 to 31 July 2011.

Count 15. Imprisonment for a total period of two years two months fourteen days with a non parole period of four months fourteen days from 18 June 2011 to 31 October 2011, on which date you are to be eligible to be released on parole, and a parole period of one year ten months from 1 November 2011 to 31 August 2013.

56 I order that you be subject to supervision by the New South Wales Probation and Parole Service whilst on parole during the parole period.

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