Karl SULEMAN v R [2009] NSWCCA 70

Karl SULEMAN v R [2009] NSWCCA 70

The sentence involved error because the judge treated the offences as committed in breach of trust when no position of trust under s 21A(2)(k) arose merely from the applicant's standing as a successful businessman in the Assyrian community or from ordinary commercial investment agreements. The sentence also required...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 March 2009
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentences for counts 1 to 15 quashed and varied; sentences for counts 16 to 26 confirmed.
Legal Topics
['dishonesty Offences' 'false Statements' 'using a False Instrument' 'position of Trust as Aggravating Factor' 'discount for Plea of Guilty' 'totality Principle' 'manifest Excess']
['criminal Law' 'sentencing'] ['dishonesty Offences' 'false Statements' 'using a False Instrument' 'position of Trust as Aggravating Factor' 'discount for Plea of Guilty' 'totality Principle' 'manifest Excess']

Source-derived case record

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred or was overly harsh in allowing only a 15% discount for the pleas of guilty.' "Whether the sentencing judge erred in treating the applicant's dealings with investors in the Assyrian community as an aggravating breach of trust under s 21A(2)(k)." 'Whether the sentencing judge failed to take proper account of the circumstances and relative seriousness of each count, including related counts and counts involving no actual loss.' "Whether the applicant's asserted mental state and hope of funding returns from other business activities mitigated sentence." 'Whether alleged threats to the applicant in custody should be considered on appeal.' 'Whether the overall sentence complied with totality, including in light of earlier sentences for related dishonest conduct over the same period.']

Ratio Decidendi

The sentence involved error because the judge treated the offences as committed in breach of trust when no position of trust under s 21A(2)(k) arose merely from the applicant's standing as a successful businessman in the Assyrian community or from ordinary commercial investment agreements. The sentence also required adjustment for totality because the applicant had already served custody for related dishonest offences committed over the same period. Although several other grounds failed, those errors justified a modest reduction of the total sentence to 6 years 4 months with a total minimum custody period of 4 years 9 months.

Court Disposition

Leave to appeal granted; appeal allowed; sentences for counts 1 to 15 quashed and varied; sentences for counts 16 to 26 confirmed.

Orders

  • ['Leave to appeal be granted and the appeal allowed.' 'The sentences imposed in the District Court for counts 1 to 15 are quashed and the applicant sentenced as set out in paragraph 53.' 'The sentences for counts 16 to 26 are confirmed.']