HOWIE J: The applicant was sentenced in the District Court by Nield DCJ (the Judge) for a number of offences of dishonesty arising from investments made in a company of which the applicant was the principal and which he controlled. The applicant is unrepresented before this Court but has filed both written submissions in support of his appeal and written submissions in answer to the submissions filed by the Crown. He is a highly intelligent and articulate person, which is, no doubt, why he was able to lure a number of persons in the community into making investments into the company that ultimately failed, leaving most of the investors without the return of their money.
The indictment to which the applicant pleaded guilty contained 26 counts. Fifteen of the counts were for offences contrary to s 178BB of the Crimes Act 1900, being offences of making a false statement for which the maximum penalty prescribed is imprisonment for 5 years. Eleven of the counts were for offences contrary to s 300(2) of the Crimes Act 1900, being offences of using a false instrument, for which the maximum penalty prescribed is imprisonment for 10 years. As a result of his pleas of guilty the Judge sentenced the applicant to a total sentence of 7 years 4 months from 1 May 2006 with an overall non-parole period of 5 years 6 months. The applicant is eligible to be released to parole on 1 November 2011.
Facts
There was an agreed statement of facts placed before his Honour. The facts as recited by the Judge take up 15 pages of the remarks…
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.
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AGLC
Suleman v R [2009] NSWCCA 70
Case
[2009] NSWCCA 70
Decision Date
CaseChat Overview and Summary
In the case of Suleman v R, the applicant, who had pleaded guilty to 26 counts of fraud and related offences, appealed against the sentence imposed by the District Court. The offences involved making false statements and using false instruments to induce investments in a company that the applicant managed. The applicant had previously been sentenced by another judge and was released on parole before being sentenced for the current offences. The Court of Appeal considered whether the sentence imposed by the District Court was appropriate, taking into account the principle of totality and the discount for a plea of guilty.
The key legal issues in the appeal were whether the District Court had appropriately considered the principle of totality in sentencing the applicant and whether it had correctly applied the discount for the plea of guilty. The Court of Appeal needed to determine if the sentence imposed was excessive or inappropriate given the cumulative nature of the applicant's offending and the discount that should be applied for pleading guilty.
The Court of Appeal found that the District Court had not adequately considered the principle of totality in sentencing the applicant. Although the Court acknowledged the seriousness of the offences, it noted that the cumulative sentences for the applicant's fraudulent activities over a period of time should have been considered as a whole. The Court also determined that the discount for the plea of guilty should have been more substantially reflected in the overall sentence. As a result, the Court allowed the appeal and varied the sentences imposed by the District Court, reducing the overall non-parole period by 9 months and the balance of term by 3 months.
The Court of Appeal granted leave to appeal and allowed the appeal. The sentences imposed by the District Court for counts 1 to 15 were quashed, and new sentences were imposed for each count, with the overall non-parole period reduced by 9 months and the balance of term reduced by 3 months. The sentences for counts 16 to 26 were confirmed. The applicant was to be released to parole on 1 November 2011.
Orders
Orders of the court
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Background
Background to the litigation
The indictment to which the applicant pleaded guilty contained 26 counts. Fifteen of the counts were for offences contrary to s 178BB of the Crimes Act 1900, being offences of making a false statement for which the maximum penalty prescribed is imprisonment for 5 years. Eleven of the counts were for offences contrary to s 300(2) of the Crimes Act 1900, being offences of using a false instrument, for which the maximum penalty prescribed is imprisonment for 10 years. As a result of his pleas of guilty the Judge sentenced the applicant to a total sentence of 7 years 4 months from 1 May 2006 with an overall non-parole period of 5 years 6 months. The applicant is eligible to be released to parole on 1 November 2011.Facts There was an agreed statement of facts placed before his Honour. The facts as recited by the Judge take up 15 pages of the remarks on sentence. It is unnecessary for the determination of the application to detail them to the same degree. I will summarise them as briefly as possible. Most of the offences involved the same criminal conduct but against different victims. In effect the applicant induced, sometimes by fraudulent documents, members of the public to invest in a company that he ran, Karl Suleman Enterprises Pty Limited (“KSE”). This company was incorporated in 1999 to take over the applicant’s highly successful business in the collection of supermarket trolleys. From April 2000 until July 2001 the applicant sought and accepted investments in this company. There was a Financial Investment Agreement setting out the terms of the investment that was to be for a number of years, variously between three and fifteen. The result of the agreement was that the investor would be guaranteed a return on the investment by fortnightly payments from the income of the trolley collection business. In relation to one investor, the applicant induced the investment by false documents he had manufactured indicating the existence of contracts between large supermarket stores and KSE for the collection of trolleys. These false documents gave rise to the charges under s 300(2). Count 1 on the indictment related to false statements made to Soldoz Pty Limited (“Soldoz”) in April 2000 in relation to an investment made by the company with KSE. In effect the applicant falsely stated that the investment made by Soldoz would be repaid from the income received by KSE from two specific trolley collection agreements in which KSE was involved with two supermarkets in Queensland. However those agreements did not exist and, therefore, any return made to Soldoz would not come from income derived by KSE from those sources. Soldoz’s investment agreement was actually fulfilled by KSE but from funds obtained from other investments to which other charges related. Count 2 related to an investment made in KSE by the Billington Family Trust (“the Trust”) in April 2000 as a result of false statements made by the applicant. As in Count 1 the false statements related to specific agreements purportedly existing between KSE and 14 specified trolley services agreements with various supermarkets. Those agreements did not exist and, therefore, any returns made to the Trust would not be derived from the income of those agreements as the Trust believed. In fact the agreement made with the Trust was fulfilled, money being paid from funds obtained from other investment agreements. Counts 16 to 26 related to false instruments prepared by the applicant to induce the Trust to enter into the investment agreement and purporting to be the agreements between KSE and the specified supermarkets.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
CLELLAN CJ
For the present offences and those before Judge Berman the applicant in effect received an additional non-parole period of 12 months to that imposed by Judge Nield. The matter is somewhat complicated because the applicant was released to parole between the two sentencing proceedings and placed on bail in respect of the present offences.Decision In my opinion having regard to the error in taking into account that the offences were committed in breach of trust and the totality of the sentences for the whole of the applicant’s fraudulent criminality over the period of 2000 and 2001 there should be some modest reduction in the overall sentence imposed by his Honour. This can best be achieved by adopting the scheme used by his Honour notwithstanding the technical criticisms that might be made of it, otherwise this Court would be required to increase some sentences to achieve the appropriate result. The seriousness of a particular offence can be reflected in the period of accumulation between the sentence for that offence and the sentence for the next offence on the indictment. So, for example, to indicate the seriousness of the offence relating to the Trust in count 2 there is a period of accumulation of 12 months with counts 3 and 5. Yet the overall sentence imposed for counts 1 to 14 is the same as that imposed by the Judge. The reduction in the overall non-parole period is achieved by a change to the commencement date of the sentence for count 15. The reduction in the overall sentence is achieved by a reduction in the balance of term for that count. It is my intention that the overall non-parole period be reduced by 9 months and the overall balance of term by 3 months: that is a total term of imprisonment of 6 years 4 months with a total minimum period of custody of 4 years 9 months as against a total term imposed of 7 years 4 months and a total minimum period of custody of 5 years 6 months imposed by his Honour. I propose the following orders:1. Leave to appeal be granted and the appeal allowed.2. The sentences imposed in the District Court for counts 1 to 15 are quashed and the applicant sentenced as follows:On count 1 the applicant is sentenced to imprisonment for 18 months to date from 1 May 2006 and that expired on 31 October 2007;On count 2 the applicant is sentenced to imprisonment for 18 months to date from 1 January 2007 and that expired on 30 June 2008;On counts 3 to 5 the applicant is sentenced to imprisonment for 18 months to date from 1 January 2008 and that expires on 30 June 2009;On count 6 the applicant is sentenced to imprisonment for 18 months to date from 1 April 2008 and that expires on 30 September 2009;On counts 7 to 9 the applicant is sentenced to imprisonment for 18 months to date from 1 July 2008 and that expires on 31 December 2009;On count 10 the applicant is sentenced to imprisonment for 18 months to date from 1 October 2008 and that expires on 31 March 2010;On count 11 the applicant is sentenced to imprisonment for 18 months to date from 1 January 2009 and to expire on 30 June 2010;On counts 12 and 13 the applicant is sentenced to imprisonment for 18 months to date from 1 April 2009 and to expire on 30 September 2010;On count 14 the applicant is sentenced to imprisonment for 18 months to date from 1 July 2009 and to expire on 31 December 2010;On count 15 the applicant is sentenced to a term of imprisonment comprising a non-parole period of 4 months 14 days to commence on 17 September 2010 and to expire on 31 January 2011 the date upon which the applicant is to be released to parole with a balance of term of 1 year 7 months to date from 1 February 2011.3. The sentences for counts 16 to 26 are confirmed.