By Paul Gregoire and Ugur Nedim
After having worked at financial planning and investment company Sentinel Wealth for three years, Gavin Fineff became a financial planner in 2013, and by 2019, he was earning a substantial income plus bonuses and had 120 clients. And he’d even acquired a minority financial stake in the business.
However, over October 2016 until March 2020, the financial planner defrauded 12 of his clients for amounts ranging from $60,000 to $745,000, which he then gambled away. The total amount the Sydney man squandered in client money amounted to over $3.3 million.
Fineff obtained the finances from the clients, as personal loans, ostensibly to purchase shares in three companies, one of which was Sentinel, and he guaranteed a per annum interest rate on repayment and did this despite individual share purchases being outside of the scope of his role.
Half of the dozen clients Fineff defrauded were in their 70s and 80s, while the rest ranged from 35 to 60 years old.
Sentinel first became aware of its financial planner’s aberrant activities in February 2020, when a client, who was not a victim, sent an email alerting the owner to the scam. And Fineff admitted his behaviour in a letter to his employer the next month, and his employment was then terminated.
The finance company then employed a forensic accountant that found the fraud was not part of his financial planner role, rather it was due to Fineff’s personal relationship with clients.
And in May 2021, Fineff turned himself in at Chatswood Police Station and was extremely helpful to police in the details he provided.
An instinctive synthesis
Fineff pleaded guilty to twelve counts of dishonestly obtaining a financial advantage by deception, contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). And this offence carries up to 10 years prison time.
NSW District Court Judge Christopher O’Brien assessed the crimes as all around the mid-range of objective seriousness, while some were just below that, and a number of others were above mid-range. And the seriousness of each crime was compounded as the age of the client increased.
His Honour stressed the importance of general deterrence in sentencing Fineff. General deterrence means applying a heavier sentence to ensure other members of the public are discouraged from engaging in the same criminal behaviour.
Much was made of the impact Fineff’s behaviour had upon the most elderly people he’d deceived, as this was the money they’d earned for retirement, and they had no chance of recuperating their finances and their end of life living circumstances deteriorated significantly.
But Fineff benefited in his sentencing due to his efforts in assisting his victims recuperate some of their losses, as well as his having assisted in official inquiries into gambling reform and how the industry operates. And he’d spent time in psychiatric care prior to handing himself in to police.
The offender also received a 25 percent discount for his early guilty plea and a 5 percent discount for the assistance he’d provided authorities.
And as is the practice in such cases, Judge O’Brien handed down an individual, or indicative, sentence for each separate offence, which was assessed by each set of offending circumstances, and each of these sentences had a 30 percent discount applied to them individually.
So, on 21 April 2023, his Honour handed down an aggregate sentence of 9 years prison time, with non-parole set at 5 years and 4 months.
An aggregate sentence is not simply the sum of each separate sentence for each individual crime, but rather it is the result of an “instinctive synthesis” of the various sentences, which is carried out by the sentencing judge.
Judge O’Brien also found special circumstances applied to Fineff’s case, which meant he received a shorter non-parole period than is statutorily required, due to his good prospects of rehabilitation and as he’d have a longer time for a post-release gambling rehabilitation intervention to take place.
Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that a non-parole period must amount to at least 75 percent of the overall, or head, sentence, unless special circumstances are found and the potential for release after a shorter period spent inside then becomes available.
Manifestly excessive
Fineff went on to appeal his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 3 June this year. And he rose one ground of appeal, which was that his sentence was manifestly excessive.
In his final findings, NSWCCA Justice Mark Leeming asserted that “two things should be noted at the outset”.
The first was that none of the indicative sentences were said to disclose error. And after a 30 percent discount was applied to each, they added to almost 25 years.
So, the 9-year sentenced reflected a high degree of “notional concurrency”, which was warranted due to the short period of Fineff’s crime spree.
His Honour further found that it was difficult to understand how such a high degree of concurrency could result in a manifestly excessive sentence.
The second point was that the ground of manifestly excessive was being applied to the “the whole sentence, not just the total term”, meaning that the non-parole period was also being challenged.
But due to the finding of special circumstances, Fineff was facing 5 years and 4 months without prospect of release, rather than the usual statutory requirement that would have resulted in 6 years and 9 months non-parole, which was “substantially more severe”.
In submissions, Fineff’s legal team made points that had suggested a notional head sentence of 12 years prior to the 30 percent discount being applied and resulting in a 9-year head sentence, was indication that the sentence was excessive.
But Justice Leeming explained that this was not possible as the indicative sentences already had the discount applied at the time the sentencing judge had come to the aggregate sentence via the application of the process of instinctive synthesis.
Hi Honour added that section 53A of the Crimes (Sentencing Procedure) Act requires a judge to determine the sentences which would have been imposed for each individual offence, along with incorporating any discount for the utilitarian value of a plea, prior to coming to the overall sentence.
And when applying an aggregate sentence, a judge must abide by the principle of totality, which requires that when sentencing for more than one crime, the final sentence must be “just and appropriate” when taking into account the overall offending conduct.
A breach of trust
On 17 June this year, Justice Leeming granted leave to appeal but then dismissed the appeal.
“I am unpersuaded that the sentence imposed by the District Court is one that is manifestly excessive,” his Honour found, adding that this was even with “regard to the exceptionally favourable subjective case presented”, which included remorse, insight and good prospects of rehabilitation.
And this was the case, due to Fineff having abused his position of trust, “particularly in relation to elderly clients”. His Honour said that when further taking in “the timing and scale of the offending, the sentence” was “well within the range of sentences open to be imposed”.
Justice Leeming further underscored that considering the offending “the non-parole period reflects a substantial element of leniency”.
And NSWCCA Justices David Davies and Natalie Adams agreed with their colleague’s findings.
