R v Trevillian

[2024] NSWDC 669

District Court

New South Wales

Medium Neutral Citation:

R v Trevillian [2024] NSWDC 669

Hearing dates:

8 November 2024, 20 December 2024

Date of orders:

8 November 2024, 20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [38]-[44].

Catchwords:

CRIME – SENTENCE – Forgery – Two charges – Investment manager in financial world – Forged auditor’s reports of his investment scheme used by his principal to entice its customers to invest with the principal – Sums invested by customers (over $14 million) reimbursed by offender within one month of offender’s principal’s learning of the forgeries – Crimes caused offender severe personal hardship – Aggregate sentence – ICO.

Legislation Cited:

Crimes Act 1900 ss 192E, 253(b)(ii).

Cases Cited:

R v De Simoni (1981) 147 CLR 383

Weaver v R [2021] NSWCCA 215

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (NSW)
Offender – Brett Paul Trevillian

Representation:

Counsel:
Crown – Ms New, D.
Offender – Mr Edwards, T. SC.

Solicitors:
Crown – Australian Securities and Investments Commission
Offender – Kerrs Law

File Number(s):

2023/00226962

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Brett Paul Trevillian stands for sentence as a consequence of pleading guilty to two charges.  They are known as Sequence 1 and Sequence 4.  The amended Court Attendance Notice (“CAN”) of Sequence 1 is this:

"[He] did make a false document with the intention that another person will use it to induce some person to accept it as genuine, and because of its being accepted as genuine, to obtain any financial advantage."

2. The particulars of the false document given in the amended CAN are these:

"A Bell Partners 'Portfolio Performance Verification ‑ Report of factual findings', dated 22 May 2019, showing the 'Secured' monthly returns for the years 2012 to 2018.

A Bell Partners 'Portfolio Performance Verification ‑ Report of factual findings', dated 22 May 2019, showing the 'Secured' yearly returns for the years 2012 to 2018.

A Bell Partners 'Portfolio Performance Verification ‑ Report of factual findings', dated 22 May 2019, showing the 'Secured' yearly returns for the years 2014 to 2018."

That is an offence pursuant to s 253(b)(ii) of the Crimes Act 1900.

3. The second offence is known as Sequence 4.  The relevant pleading is not clear from the document before me but can be found on page 9 of the Crown tender; that is, between about 10 September 2019 and about 2 October 2019 at Sydney and places elsewhere, Brett Trevillian made a false document with the intention that another person will use it to induce some person to accept it as genuine, and because of its being accepted as genuine, to obtain any financial advantage. 

4. The particulars under that pleading are these;

"A Bell Partners 'Portfolio Performance Verification ‑ Report of factual findings', dated 1 October 2019, showing the 'Enhanced' yearly returns for the years 2014 to 2018." 

That is an offence contrary to s 253(b)(ii) of the Crimes Act 1900. Each offence carries a maximum penalty of imprisonment for ten years. There is no standard non‑parole period. The offences can be shortly described as "forgery", being the heading above s 253 of the Crimes Act.

Background & Facts

5. This matter has had a tortuous history.  It came before me on 23 September 2024, 24 September 2024 and 25 September 2024, when it was adjourned for sentence to 10 October 2024, when I made an order that a Sentencing Assessment Report (“SAR”) be obtained to ascertain whether the offender was suitable for the imposition of a home detention as part of an Intensive Corrections Order (“ICO”).  However, I was subsequently advised that the Community Corrections at Newcastle would not prepare such a report unless the offender had physically been sentenced.  That was drawn to the parties' attention on 10 October 2024 and the matter was then listed before me today for the passing of sentence. 

6. The day has been a busy one.  At 9 o'clock this morning, there was a swearing‑in ceremony.  I spent the rest of the morning sentencing an offender whose sentencing hearing I conducted yesterday afternoon after spending most of that day sentencing another offender who had similar circumstances to the first‑mentioned other offender.  It is now a quarter to 4.  I trust that I will be forgiven for giving abbreviated reasons.  However, the material before me is extensive.  On my calculation, there are 291 pages of documents before me.

7. The offender, Mr Brett Trevillian, was an investment manager.  He was the sole secretary and director of a company called Metal Alpha Pty Ltd, which company he used for carrying out his business.  Metal Alpha Pty Ltd was contracted to another company called Alpha Thorn Pty Ltd.  That company was a subsidiary of Hyper Capital Pty Ltd, the controller of both those companies was Mr Gabriel Yakob.  Alpha Thorn managed investments on behalf of private clients.  Alpha Thorn was the provider of a Managed Discretionary account which invested and managed the portfolios of wholesale clients.  It marketed its services to "high‑net worth individuals" who were seeking a safe but high return without having any risk to the capital of the investors.  At material times, Alpha Thorn could be described as a private investment fund open only to "sophisticated high‑net worth investors".  The offender, through his company, Metal Alpha was the investment manager of Alpha Thorn products.  That was by reason of a contract between Metal Alpha Pty Ltd and Alpha Thorn Pty Ltd bearing date 22 February 2019.  Clause 2.1 of that contract stated, generally, that Metal Alpha was the manager appointed to manage the client portfolios in the terms contained in the agreement.  The agreement is extensive.  Its coversheet commences at page 51 of the Crown bundle, Exhibit A, and finishes at page 104 of Exhibit A.  Alpha Thorn's Chief Financial Officer (“CFO”) in 2019 was Kartheepan Sreeskantapathy, who was called Sree.

8. On 6 March 2019, Mr Yakob and Sree met Mr Jared Brown and interviewed him for a position of Chief Executive Officer (“CEO”) of Alpha Thorn Pty Ltd.  Brown is one of the reasons why the documents, the subject of the forgeries, were sought.  Other relevant persons in the factual matrix are Bell Partners Accountants Advisors Auditors Pty Ltd to whom I shall refer mainly as Bell Partners.  Bell Partners is a financial services company that provides accounting, audit, tax advice, consulting, legal, insurance, finance and wealth services to individual and corporate clients.  Ms Emily Wright was, at the relevant time, a manager of Bell Partners and had provided accountancy services to both the offender and his company, Metal Alpha Pty Ltd.

9. The offender represented to Alpha Thorn Pty Ltd that there was a trading strategy called the “Gold Method".  The offender represented to Alpha Thorn that that method was a trading algorithm designed for a particular niche area of trading in gold and metals contracts futures.  Alpha Thorn embraced the offender's strategy as its own.  In 2019, Alpha Thorn had effectively sought to repackage and promote the offender's Gold Method trading strategy as its own.  The Gold Method investment strategy claimed to earn high returns in contrast with traditional retail investment strategies.  Alpha Thorn's two products that were said to rely on the Gold Method strategy were the Secured Service and the Enhanced Service.  Both products claimed to invest in "a range of gold and other precious metal investments, investing predominantly in gold CFD futures" that would yield high returns.  The Secured Service, which is the subject of the Sequence 1 forgeries guaranteed the investors' capital and purported to produce returns of between 6.79% and 16.54% between the years 2014 and 2018.  The Enhanced Service, the subject of Sequence 4, targeted returns of at least 30% per annum but without a guarantee of the investors' capital.

10. In March 2019, a Mr Jared Brown met with the offender and discussed the Gold Method trading strategy.  Prior to accepting employment as CEO with Alpha Thorn, Mr Brown informed Mr Yakob and Sree that if he were to promote the Gold Method strategy to “high net‑worth" investors, then Mr Brown wanted an independent verification of the trading performance.  In March 2019, Mr Brown requested that Yakob and Sree have the trading performance of the investors' Gold Method strategy audited.  Alpha Thorn then requested the offender to instruct an accountancy practice to verify the claimed returns and provide a report which could be provided to future investors to support the claimed high returns.  The offender stated, on Sree's suggestion, that he would have Bell Partners conduct the audit.  Between April and October 2019, the offender created four false documents called "Performance Verification Reports", which can be referred to as PVRs.  The offender knew that the purpose of the PVRs was to justify the Gold Method strategy to Brown and the offender also knew that ultimately Alpha Thorn would be using the PVRs to induce people to invest with Alpha Thorn on the basis of the purported returns of the Gold Method strategy.  The PVRs, the subjects of Sequences 1 and 4, were false in material respects.  Those were:

1. The offender represented the documents came from Bell Partners, made the documents look as if they came from Bell Partners and were signed by Ms Wright and those were all false;

2. The offender represented successful trades had been made, particularly for the years 2014 to 2018, by him, and through his company Metal Alpha Pty Ltd and/or Alpha Thorn and that was false because the offender never made any such trades;

3. The offender represented that the PVRs that trading had occurred via IG Markets Limited’s trading platform and that was also false; and

4. The offender represented returns were achieved on the trades and that was false.  The offender fabricated the fact that, the trades having occurred, the offender knew that Metal Alpha/Alpha Thorn had not traded in the manner purported to have been done in the PVRs.

Sequence 1 – Secured Service product

11. Sequence 1 relates to three PVRs, as particularised earlier, that the offender created for the Secured Service product.  In February 2019, Alpha Thorn launched the Secured Service product.  On 22 April 2019, Sree sent an email to the offender asking if he could call 'his contact at Bell Partners' and requested an audit opinion 'on the monthly returns'.  Sree requested that Bell Partners verify the purported results of the offender’s Metal Alpha’s Gold Method returns.  Alpha Thorn was seeking a portfolio PVR as to the trading that had been done.  As the offender was now Alpha Thorn's investment manager, Sree requested that the audit results be represented as Alpha Thorn's and not those of Metal Alpha because the PVRs were going to be used to induce people to invest with Alpha Thorn.  On 22 April 2019, the offender responded to Sree that he would follow that matter up with Bell Partners.  On or before 13 May 2019, the offender created a document being a draft 'performance audit report', purportedly from Bell Partners.  The Word document that the offender created was similar in form and content with large parts identical to a document provided to the offender by Ernst & Young in 2011.  The appendix is the same as that of Ernst and Young's report, except that the Ernst & Young logo was replaced with "Bell Partners Accountants Advisors Auditors Pty Ltd".  The offender dishonestly represented trades had occurred and that there were the represented returns on investments, knowing no such trades had been made at all.  That document was unsigned and contained a watermark indicating that it was a draft.  On 13 May 2019, the offender emailed Sree the draft performance audit report, informing Sree that he would 'run it all by [Bell Partners]' after Sree made appropriate changes and Yakob authorised the document.  On 15 May 2019, Sree emailed the offender an amended version of the report and in the email, Sree reminded the offender that the purpose of the final audit report was so that it could be provided to potential Alpha Thorn investors and that the offender's company, Metal Alpha, should not be cited in the audit report.

12. On 21 May 2019 at 4.08pm, the offender emailed Sree a further version of the draft report which he created for Sree to settle.  Sree emailed a copy of the draft report to Yakob.  On either 21 or 22 May 2019, the offender created two more false documents being two signed performance audit reports for the Secured Service dated 22 May 2019.  The offender, again, made the document look as if it had been drafted by Bell Partners and represented trades that had occurred and there were represented returns on investment, knowing that no such trades had been made at all.  The offender forged the signature of Ms Emily Wright.  The main difference between the two signed reports was the annexure attached to each document.  The offender created those annexures.  An example of the some of the content in the annexure showing the figures for the purported actual returns is set out in the agreed facts:

Appendix A – Returns Calculation

Gross Return on Equity (%)	Post 15% Management Fee (%)	Post Admin and Performance Fee (%)
2012	13.73	11.67	10.00
2013	1.51	1.28	0.78
2014	6.79	5.77	5.27
2015	13.98	11.88	10.00
2016	14.65	12.45	10.00
2017	14.51	12.33	10.00
2018	16.54	14.06	10.00

13. On 22 May 2019, the offender emailed Sree the two forged PVRs.  On 23 May 2019, Sree provided a copy of those reports to Yakob who stated that he would not sign off on the PVRs because the reports included returns for the years 2012 and 2013, and Yakob did not want those years included.  On 24 May 2019, Sree requested the offender amend the PVRs to take into account Yakob's concerns about reducing the audit period; that is, to limit the returns being audited to the years between 2014 and 2018.  The offender agreed to address that request.  Prior to 2 June 2019, the offender created a third false document being a signed performance audit report for the Secured Service dated 22 May 2019, purportedly from Bell Partners with a forged signature of Ms Wright.  Again, the report represented trades had occurred and that they were for the represented returns on investment knowing that no such trades had been made at all.  He drafted a table showing the returns between 2014 and 2018.  On Sunday, 2 June 2019, the offender emailed Sree with what he described as the "Attached final for 2014 onwards".  That table was the same as the one I cited above, less the figures for the years 2012 and 2013.  On Monday, 3 June 2019, the offender emailed Sree a corrected and last version of the PVR for the Secured Service.  On the same day, the offender met Sree at the InterContinental Hotel at Double Bay and insisted that he would pay Bell Partners for the reports.  They exchanged words to the following effect:

"Sree:  Hey, how much do I owe you or the audit work?

Offender:  No, it's fine.  I've got that covered."

Sequence 4 – Enhanced Service product

14. Sequence 4 relates to the PVRs the offender drafted for the Enhanced Service product.  Investors in the Enhanced Service were required to have net assets exceeding $2.5 million.  In May 2019, at the time the offender and Sree discussed the PVRs for the Secured Service product, Sree asked the offender if he could do the same for the unsecured results.  The offender advised Sree that it would be just a matter of multiplying the Secured Service returns by five to reach the returns for the Enhanced Service.  In September 2019, Alpha Thorn launched the Enhanced Service investment product.  On 10 September 2019, Sree approached the offender for a new audit on the Enhanced Service.  Sree emailed the offender two draft copies of the performance audit for the Enhanced Service and asked the offender for his assistance in getting the yearly and monthly audit opinions for the Enhanced Service product.  Both draft versions of the PVRs were dated 21 May 2019, were unsigned and purported to represent an audit or verification of Alpha Thorn's returns on investment for the Enhanced Service for the years 2012 to 2018, the main difference between the two versions being the appended monthly or yearly tables.  On 19 September 2019, the offender told Sree that Bell Partners approved the draft report and were "happy to sign off" on them.  Between 19 and 24 September 2019, Sree and the offender corresponded about the progress of the audited reports.

15. On or prior to 24 September, the offender created two forged documents being signed "performance audit reports" for the Enhanced Service dated 24 September 2019.  The offender again made the PVRs seem as if they were audited by Bell Partners and he, again, forged Ms Wright's signature.  The offender, for the PVR for the Enhanced Service product, fabricated the fact those investments were based on trades that had actually occurred between 2012 and 2018.  On 24 September 2019, the offender emailed Sree the two versions of the PVRs for Alpha Thorn's Enhanced Service and informed Sree that Bell Partners wanted to make one minor change in relation to 2012 figures.  On the following day, Yakob told Sree that the 2012 and 2013 returns could not be reconciled with what was presented Alpha Thorn's website and likely to trigger unwanted questions from potential investors.  The offender then reworked the document and removed the purported returns for the years 2012 and 2013.  A sample of the information that the offender created which purported actual returns for the Enhanced Service product is this: 

Appendix A Table – Yearly returns calculation for Performance Verification Report

Post Admin and Performance Fee
2014	29.78%
2015	34.01%
2016	34.48%
2017	34.65%
2018	35.96%

16. On 2 October 2019, the offender emailed Sree the two final versions of the PVRs for Alpha Thorn's Enhanced Service.  One document purportedly showed monthly returns on investments and the second document purporting to show yearly returns.  The agreed facts then referred to IG Markets Limited.  Each of the PVRs reported that trades were made by Metal Alpha by way of the trading platform IG Markets Limited for the period from 2014 to 2018.  However, IG Markets' business records disclose that for the period from 18 November 2017 to 17 April 2019 no trading occurred.  In other words, there were further false representations.

17. Between 23 January 2020 and 22 July 2020 Jared Brown emailed ten potential investors various versions of the PVRs.  Between 28 September 2019 and 22 July 2020, Alpha Thorn offices sent the PVRs to over 50 separate potential investors.  Some examples of what was done are included in the agreed facts, but I need not recite them.  On 9 July 2020, an employee of Alpha Thorn emailed the PVRs to a potential investor who undertook his or her own due diligence.  On 14 July 2020, Mr Alexander Poneskis, an audit manager at Bell Partners received a phone call from that investor.  The investor wanted to check whether the PVRs were genuine.  Bell Partners saw the PVRs and noticed that they were forged documents.  On 16 July 2020, Bell Partners' solicitor sent a letter to Alpha Thorn notifying Alpha Thorn that the Bell Partners' reports were not authentic and would be reported to the Australian Securities and Investments Commission (“ASIC”).  Bell Partners requested that Alpha Thorn immediately stop distributing the reports.  Sree received the letter from Bell Partners' solicitor and sought instructions from Mr Yakob and emailed a copy of the letter to the offender.  Sree also contacted the offender by phone and the offender told Sree, "This is probably a miscommunication.  Leave it to me."  The following day Sree followed the offender up.  On 20 July 2020, Sree sent a text message to the offender requesting that he urgently respond.  At about midday on 21 July 2020 Sree sent another email to the offender pointing out that things had become urgent.

16. At 1.36pm on 21 July 2020, Sree sent another email to the offender informing him that Mr Yakob was "furious".  Two or more emails were sent by Yakob to the offender later that day.  At 9.33pm on 21 July the offender responded to both Mr Yakob and Sree.  He apologised and assured them that the investor's money was safe.  He said this:

"I apologise for all the concern I have caused.  The investor's money is safe and I will have it returned to Alpha Thorn account to be disbursed back to the investors within the new few days.  I am so sorry for the mistakes made.  I rushed the process."

19. On the following day, the offender departed Australia and travelled to the Irish Republic.  He informed the Australian Border Force that he was operating crew aboard a private yacht based in Europe for a year.  After leaving Australia, the offender subsequently resided in Dubai in the United Arab Emirates.  Since his departure from Australia on 21 July 2020, he returned to Australia for four short visits.  However, on his fifth return to Australia on 20 July 2023 he was arrested and charged.  Between 22 April 2020 and 22 July 2020, Alpha Thorn's third‑party investors and clients invested a total of $14,301,424 with Alpha Thorn.  On 23 July 2020, the offender transferred $14,133,550 to Alpha Thorn for the purpose of repaying the third‑party investors.  On 30 July and 1 August 2020, Alpha Thorn returned all the money invested by third‑party investors with interest; that is, a total sum of $14,756,766.

Factual Dispute

20. The facts commence at [72] to refer to losses incurred by Mr Yakob. Those losses are not agreed. They are not agreed for a number of reasons which are succinctly outlined in the submissions on behalf of the offender which are MFI 1. Paragraphs [72] to [75] of the proposed agreed facts have been objected to by the defence on the grounds of relevance, on the grounds that the proposed agreed facts infringe the principle in R v De Simoni (1981) 147 CLR 383 and because in the alternative the offender submitted that it has not been proved beyond reasonable doubt that Yakob relied upon the forged documents, the subject of the charges in investing in the Secured Service and the Enhanced Service in the period between August 2019 and June 2020.

21. In my view, the relevant parts of the defence submission that I accept are these:

"1.  It is clear from paragraphs 2 to 4 of the Crown submissions, the forged documents, the subject of the charges, were provided to Alpha Thorn in order that Alpha Thorn could market the offender's 'Gold Method' to external investors.  The whole point of the forged documents was to induce third‑party investors to invest with Alpha Thorn on the basis of the offender's investment strategy.  There is no available inference that the intention to obtain a financial advantage was an intention on the part of the offender that Alpha Thorn would further invest with the offender;

2.  As stated in paragraph 72 of the proposed agreed facts 'from about mid‑2016 Yakob invested in the offender's investment strategy'; that is, Yakob, through his group of companies was investing in the offender's investment strategy for almost three years before the documents were forged;

3.  In the course of the investigation about the offences committed by Mr Trevillian, Mr Yakob was interviewed by ASIC on 28 May 2021, commencing at 10.12am and concluding at 4.19pm; that is, for the best part of six hours.  The transcript is 174 pages long and was served on the offender in accordance with the usual disclosure of the Crown to offender.  If the Crown wished to assert that Mr Yakob relied upon the offender's forged documents for his investments between 5 August 2019 and 29 June 2020, he is a competent and compellable witness and the Crown could have called him to prove that fact; that is, that he relied upon the false assertions made by Mr Trevillian.  However, he did not;

4.  The decision of the High Court of Australia in GAS v The Queen (2004) 217 CLR 198 at [30] five members of the High Court said of fact‑finding following a plea of guilty:

'In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted).  There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case.'”

5. Sequence 1 was complete, according to the relevant Court Attendance Notice, by 30 June 2019; that is, the essential elements of the offence, including the offender's intention, had been satisfied by that time.

6. Sequence 4 was complete, according to the relevant Court Attendance Notice, by 2 October 2019; that is, the essential elements of the offence, including the offender's intention, had been satisfied by that time and only an unknown proportion of Yakob's investments occurred after that time.

22. I should point out that there is in evidence, a letter from Metal Alpha under the hand of Mr Trevillian signed by Mr Yakob on 24 May 2016, Mr Yakob being the principal of Little Learning Management Pty Ltd of South Granville.  The letter was informing Mr Yakob of the investments which he could make through Metal Alpha.  The letter is headed "Letter of Engagement" and commences with this:

"Metal Alpha Pty Ltd is pleased to confirm our offer to manage the investment of capital of Little Learning Management Pty Ltd...as set out in this letter, and on such other basis as agreed in writing."

It is that Letter of Engagement that has been signed by Mr Yakob on behalf of one of his companies.

23. The offender's counsel then discussed in his written submissions the De Simoni principle. Inter alia, he said this:

"In this case it can be presumed that Alpha Thorn would be a relevant 'other person' who would have received the third‑party investors' capital and, further, that the offender, through his position as 'investment manager', would have benefited through a presumed financial arrangement with them.  However, the elements are complete when the offender intended to induce Alpha Thorn to accept the false document as genuine.

The Crown asserts, at paragraph 28 of their submissions, that 'although not a fraud, the offence has elements akin to fraud'.  Some of the factors that are considered when sentencing for fraud offences can apply, by analogy, to this offence to assist the Court in its assessment of the objective seriousness of the offences.  This is said, by the Crown, to include 'the amount of money involved'."

24. At paragraph [33] of the Crown's submissions, the following is submitted:

"Further, the amount of money involved and whether the loss was irretrievable involves considering the amount invested and any loss from third‑party investors.  This is not to suggest the offender committed a fraud or that he dishonestly intended to, and in fact, obtain for himself or another person by a deception the sums ultimately invested."

25. Mr Edwards' submissions then continue in this fashion:

"If the Court considers the quantity of money invested by Yakob between 5 August 2019 and 29 June 2020 (as the Crown urge), they are in fact inviting the Court to determine that the offender 'dishonestly intended to and in fact obtain for himself or another person by a deception the sums ultimately invested'.  This is a fraud.  If the Court takes into account the amount obtained, it is submitted that the elements of fraud are made and this contravenes the principles in De Simone."

26. Mr Edwards then pointed out that fraud is an offence contrary to s 192E of the Crimes Act 1900 which carries a maximum penalty of ten years' imprisonment.  The elements of that offence are different to the offence of forgery.  He then said this:

"The mere fact that the 'other offence' carries the same maximum penalty does not necessarily preclude the operation of the De Simone principle; for example, in Cassidy v The Queen [2012] NSWCCA 68 at [6], [26] offences under ss 27 to 30 of the Crimes Act which require an intent to kill and which have standard non‑parole periods were regarded as 'more serious' for the purposes of the De Simone principle than an offence under s 198 of the Crimes Act (destroying or damaging property) with the intention of endangering life, notwithstanding that the latter offence had the same maximum penalty.  Ultimately, what De Simone requires is an assessment of whether the 'other offence' is more serious."

27. I was then referred, by counsel, to Weaver v R [2021] NSWCCA 215 which is a case that Mr Edwards was relying upon. He then submitted that if the Crown was seeking to prove that as a consequence of the forgery; that is, deception with dishonesty of the offender, Mr Yakob was caused a financial disadvantage in the sum of $23,000,000, that aggravating feature infringes on De Simone; that is, the offender is being sentenced for a $23 million fraud. I accept, as has been submitted, by Mr Edwards, that there is a complete lack of proof beyond reasonable doubt of that offence in any event. In particular, what I said at the beginning of this section of these reasons, to me, is almost conclusive. There was no averment on oath or even in any written form by Mr Yakob that in making his investments that he had been making since 2016, that he relied upon the documents that were forged by the offender, the subject of these proceedings. He could have said something in his six‑hour interview, but it has not been put before the Court. I, therefore, do not accept the disputed facts that are contained between paragraphs [72] and [78] of the document that commences at page 9 of Exhibit 1.

Personal Circumstances

28. The offender comes before this Court as a man of prior good character.  However, one has to bear in mind that this is a white‑collar crime, and persons who have criminal records are less likely to commit the sort of crime to which the offender has pleaded guilty.  However, it is clear from his letter to me of 19 September 2024, that up until his offending in these matters by forging documents from the accountants/auditors at Bell Partners that he had lived a life free of any crime or any other taint and that he was well regarded in the financial world in which he moved.

29. There are a number of references from other persons involved in the financial world in which the offender moved.  The first is from Mr Aidan Conway and bears date 19 September 2024.  Mr Conway told me that he operates an infrastructure maintenance business in both the United Kingdom, Europe and Australia.  He first met the offender in 1996 in Hong Kong where he worked for a large financial institution as a precious metals trader.  Since that time, the offender has become a good, close personal friend of Mr Conway and his family.  He lived in Australia between 1998 and 2005 and spent a significant amount of time with the offender and his own family.  He described the offender as a trustworthy and loyal friend for nearly three decades.  The charges to which the offender pleaded guilty came as a complete surprise to him.  He found the offending completely out‑of‑character for the offender as an individual.  He attests that to the best of his knowledge, the offender had never been in legal jeopardy previously.  He accepts, based on his long history with the offender, that he is sincerely sorry for the crimes which he committed of falsifying documents and that he has assured Mr Conway that such will not occur again.

30. Another person providing a reference is Mr Simon Nearn who has known the offender professionally for 20 years and also regards him as a friend.  Mr Nearn is a dual‑citizen of Australia and the United Kingdom and has maintained successful businesses in both Australia and Britain.  As well as holding company directorships in both countries, he is also the non‑executive board member in family businesses and has run a successful strategy and business advisory consultancy.  He said this:

"I know Brett to be of strong character and good moral standing.  He has always acted with transparency, integrity and honesty in all my dealings with him.  I know him to possess a high level of generosity, empathy and compassion towards everybody he meets ‑ clearly demonstrated on numerous occasions with multiple friends and family interactions."

He also speaks of the offender's involvement in the broader community and his generosity. 

31. Another reference is from Mr Florent Teboul.  He said this:

"I met Brett Trevillian in 1997 when working for UBS in Zurich.  He was trading our book during Asian hours.  He then came with the team I was heading in London in 1997 on the precious metal derivatives desk.  I left UBS after the merge with SBS in 1998 to work for SG in New York.  Brett joined my team again in SG in 2002.  I was then in derivative sales in Paris and he was a trader in Sydney under the same management (commodity desk).

Even if we left each other professionally between 1998 and 2002, we always kept in touch and stayed friends.  We have always talked about our different professional and family moves and kept each other updated on what we were doing or planning to do.

I have always been impressed, during all these years, by Brett's ability to capture the complexity of the financial markets we were working on.  Much above the average of our teams at SG or UBS.  Finally, I would like to emphasise that Brett has always been a substantial support both professionally, technically and humanly and that his behaviour with customers has always been on a very high standard which certainly explains the level of trust that we have seen in return.  The customers that Brett has dealt with on a regular basis are major global corporations and ultra‑high‑net‑worth investors.  Brett has gone out of his way to catch up with my family and I in our homes at the time [in] Los Angeles, Tel Aviv and different locations in France.  I still consult with him regularly for high‑level advice about financial markets.

Brett has expressed to me his remorse for the actions he took in the falsification of the documents.  It is out‑of‑character for him to have done this.  When we speak, he ensures to never make the mistake again.  He has been greatly impacted by these charges, although his loss of a year of his life and business, that is already a major punishment."

There are other references from well respected members of our community both in Newcastle, which is the offender's original home, and Sydney.

32. In his letter of 19 September 2024, the offender sets out the problems he has experienced and the disadvantage he has experienced since he was arrested for these offences.  He has been required to live with his father in Newcastle.  He has been unable to travel anywhere.  He wished to fly to the United Arab Emirates to manage his business affairs but that was declined.  That resulted in the loss of his residency in the United Arab Emirates and loss of his phone accounts, bank accounts and his ability to earn any income.  His bail conditions have been restrictive of his travelling in Australia for personal reasons and also business reasons.  One paragraph of his letter is this:

"These circumstances also impacted on my personal life, leading to the breakdown of a long‑term relationship.  My partner, who was not an Australian citizen, was unable to reside or work here, and she lost her job as an employee of my company in the UAE.  The stress of the situation ultimately led to the collapse of our relationship."

Consideration

33. The only statistics which are before me for offences of this nature are from the Local Court.  They are for 58 cases between April 2020 and March 2024.  Of the 58 cases, five were dealt with by way of a Conditional Release Order without conviction; five of them were dealt with by way of a fine only; one was dealt with by way of a CRO with a conviction; 28 of them were dealt with by way of a CCO and 12 of them were dealt with by way of an ICO; seven cases, or 12.1%, were dealt with by a prison sentence.  One of those cases was for imprisonment for ten months with a non‑parole period of six months.  Another was imprisonment for 11 months with a non‑parole period of five months.  A third was for imprisonment for two years with a non‑parole period of eight months. Yet another was for two offences which were dealt with by imprisonment for two years with a non‑parole period of 12 months and a fifth was imprisonment for two years and six months for two offences with a non‑parole period of 20 months.

34. I have reached the view that what has occurred since the offender’s arrest has caused him severe hardship: the loss of his business in the UAE, the loss of his right to reside in the UAE, the loss of his close personal relationship, and the impact of his reputation and the loss of status in the financial world. Given his background, I accept that an actual, fulltime custodial sentence would be extremely onerous for him.

35. I intend to deal with the current matter by way of an aggregate sentence. In respect of Sequence 1, and allowing for a 25% discount, I fix a term of imprisonment of two years. In respect of Sequence 4, allowing for a 25% discount for the utilitarian value of the offender's pleas, I fix a term of imprisonment of one year. That provides an aggregate sentence of three years.

36. I intend to impose an ICO.  Of course, an ICO must provide for community safety.  I do not see how the community’s safety would be at all jeopardised by the offender’s serving his sentence by way of intensive correction in the community.  In essence, the convictions that will be recorded will curtail the offender's ability to pursue his occupation here in Australia. When he has completed his ICO, he may venture out of Australia, again to pursue his career.  That is entirely a question for him.  However, if I were to imprison him, I would merely put him in a much worse position than he currently is in: he would be vulnerable in a custodial environment.

37. There is no Sentencing Assessment Report before me.  Earlier, I had sought to have one obtained with a view to seeing whether the offender was suitable for home detention.  However, a SAR could also tell me whether he is suitable to perform community service.

Sentence

38. Brett Paul Trevillian, on each of the two charges before me you are convicted.

39. I sentence you to imprisonment for an aggregate sentence of three years.

Orders made on 8 November 2024

40. I grant you bail to continue on the same terms as before until such time as I obtain a sentencing assessment report.

41. I require the Community Corrections to provide a Sentencing Assessment Report commenting upon the suitability of the offender for home detention and also for community service work in the alternative.

Orders made on 20 December 2024

42. Brett Paul Trevillian, on 8 November 2024, I sentenced you to imprisonment for a period of three years, but I granted you bail to await the outcome of an up to date Sentencing Assessment Report. That report has been marked Exhibit B.

43. I confirm the sentence of imprisonment for a term of three years. That term of imprisonment will commence today, 20 December 2024. It is to be served by way of intensive correction in the community. Terms of the order are:

1. You must not commit any offence;

2. you must submit to supervision by a Community Corrections officer;

3. you are subject to home detention for a period of 18 months, ending on 19 June 2026; and

4. you must complete community service work for 300 hours.

44. You are to report to the Community Corrections Office at Newcastle today, and there are stipulations you proceed there to that office as soon as you leave Court today. You will have to go down to the registry and sign the paperwork first.

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Decision last updated: 06 May 2025