SILVEY -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 84

[2026] WASCA 84 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SILVEY -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 84 CORAM : QUINLAN CJ VAUGHAN JA SWEENEY JA HEARD : 2 FEBRUARY 2026 DELIVERED : 25 JUNE 2026 FILE NO/S : CACR 66 of 2025 BETWEEN : BRET MATTHEW SILVEY Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : EGAN DCJ File Number : IND 1090 of 2022 Catchwords: Appeal - Criminal law - Appeal against sentence - Where appellant convicted of three counts of fraud involving the gain of a pecuniary benefit of $71 million - -- 1 of 25 -- [2026] WASCA 84 Page 2 Total effective sentence of 12 years' imprisonment - Alleged infringement of first limb of totality principle - Leave to appeal granted - Appeal dismissed Legislation: Criminal Code (WA), s 409(1)(c) Result: Leave to appeal granted Appeal dismissed Category: B Representation: Counsel: Appellant : N P van Hattem Respondent : R P Arndt Solicitors: Appellant : Nicholas van Hattem Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Fleay v The State of Western Australia [2021] WASCA 214 Gaskell v The State of Western Australia [2018] WASCA 8 Giglia v The State of Western Australia [2010] WASCA 9 Grubb v The Queen [2002] WASCA 158 Hodges v The State of Western Australia [2025] WASCA 136 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jackamarra v The State of Western Australia [2019] WASCA 150 Kabambi v The State of Western Australia [2019] WASCA 44 Ng v The State of Western Australia [2025] WASCA 121 NHI v The State of Western Australia [2021] WASCA 32 OTR v The State of Western Australia [No 2] [2022] WASCA 123 Pennetta v The State of Western Australia [2013] WASCA 234 Pollock v The State of Western Australia [2011] WASCA 133 -- 2 of 25 -- [2026] WASCA 84 Page 3 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 R v Pham [2015] HCA 39; (2015) 256 CLR 550 Roffey v The State of Western Australia [2007] WASCA 246 Singh v The State of Western Australia [2023] WASCA 31 The State of Western Australia v Chapman [2012] WASCA 203 The State of Western Australia v Popal [2020] WASCA 200 Weston v The State of Western Australia [2025] WASCA 131 Wilkie v The State of Western Australia [2005] WASCA 156 Wittensleger v The State of Western Australia [2014] WASCA 205 -- 3 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 4 JUDGMENT OF THE COURT: Overview 1 This is an offender appeal against sentence. 2 The appellant was convicted, on his pleas of guilty, of three counts of gaining a benefit by fraud contrary to s 409(1)(c) of the Criminal Code (WA). Each count involved a substantial amount. Count 1 involved $5 million; count 2 involved $6 million; and count 3 involved $60 million. The maximum penalty for each offence was 7 years' imprisonment. On 2 May 2025 the appellant was sentenced in the District Court of Western Australia to the following terms of immediate imprisonment: 3 years and 3 months on count 1 (reduced from 5 years and 2 months for totality); 3 years and 3 months on count 2 (reduced from 5 years and 2 months for totality); and 5 years and 6 months on count 3. The sentences on all three counts were ordered to be served cumulatively. 3 Accordingly, the appellant was sentenced to a total effective sentence of 12 years' imprisonment. The learned sentencing judge ordered that the appellant be eligible for parole. 4 The appellant seeks leave to appeal relying on a single ground of appeal. This provides: The learned sentencing judge erred in law in sentencing the appellant to a total effective sentence of 12 years' imprisonment, which was manifestly excessive having regard to the sentencing standards and the circumstances of the offending. 5 Although the ground uses the language of the sentence being 'manifestly excessive', a phrase usually associated with a challenge to a single sentence, counsel for the appellant confirmed that the ground raised whether the total effective sentence infringed the first limb of the totality principle (appeal ts 3). There is no challenge to the individual sentences. The challenge is to the total effective sentence of 12 years' imprisonment. 6 For the reasons that follow, while we would grant leave to appeal on the single ground of appeal, the appeal must be dismissed. The objective circumstances of the offending 7 The appellant was the sole director and shareholder of Cancun Trading Pty Ltd (Cancun). He traded in securities on the stock market. -- 4 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 5 Through Cancun the appellant was involved in making investments on behalf of third parties. The third parties would lend money to Cancun for that purpose. Among those third parties were IH and his son RH. IH and RH, through investment companies associated with them, entered into various Investment Loan Agreements with Cancun. Typically this would involve lending money to Cancun for the purpose of investment for a fixed term and an agreed rate of return. The rates of return under the Investment Loan Agreements were significant. 8 The appellant informed IH and RH that Cancun maintained an insurance policy that covered the money it borrowed to trade in securities and generate returns for the lender. 9 The offending occurred between 2018 and 2020. At that time IH was 70 - 72 years of age; RH was 47 - 49 years of age. The sentencing judge found that IH and RH were 'experienced businessmen' (ts 101). At all material times IH and RH were represented by a highly regarded firm of commercial solicitors. That firm had redrafted the form of the Investment Loan Agreements used by Cancun in its dealings with IH's and RH's investment companies. Critically, each Investment Loan Agreement contained a security clause to the effect that Cancun agreed, and warranted that it had obtained, maintained and would maintain for the duration of the agreement, an insurance policy with a named insurer which covered Cancun's obligation to repay the funds advanced under the relevant Investment Loan Agreement. 10 Cancun never held such an insurance policy with the insurer. Accordingly, the representation inherent in the security clause, to the effect that Cancun's obligation to repay the principal sum the subject of the Investment Loan Agreement was insured by the insurer, was patently false. The appellant knew that Cancun had never held such an insurance policy with the insurer and that the representation was false. 11 The Investment Loan Agreements also provided that Cancun would, shortly after execution of the agreement, provide correspondence from a named firm of solicitors confirming, among other things, that the details of the agreement had been notarised on the insurance policy and that the policy covered Cancun for the performance of its obligations under the agreement. This purportedly occurred in relation to the transactions the subject of counts 1 - 3. 12 However, the appellant was not, and had never been, a client of the firm of solicitors who were supposedly dealing with the insurance -- 5 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 6 arrangements. In each case the appellant forged a letter purportedly in the name of a solicitor who had been employed by that firm. Those solicitors had no knowledge of the appellant, had never acted for him in any capacity, and had no knowledge of the letters or the insurance policies to which the letters referred. 13 The appellant emailed the forged letters to the victims adopting the pretence of forwarding emails he had purportedly received from the solicitors attaching the letters. In doing so the appellant falsely represented that Cancun had satisfied the security clause in the Investment Loan Agreements. 14 IH and RH, through their respective investment companies, would not have transferred any of the funds the subject of the Investment Loan Agreements to Cancun had they known that their investments were uninsured. 15 The offending the subject of count 1 occurred over January and February 2018. On 30 January 2018 two investment companies, one associated with IH and the other associated with RH, entered into separate Investment Loan Agreements with Cancun in an amount of $2.5 million each. The agreements provided for a rate of return calculated at 20.5% per annum. The appellant emailed forged solicitor correspondence confirming the existence of the insurance policy on 31 January 2018. $5 million was advanced to Cancun on 1 February 2018. 16 Count 2 concerned an investment company associated with IH. $6 million was advanced to Cancun pursuant to an Investment Loan Agreement dated 6 April 2020 with an agreed rate of return of 3.41% for a month (in excess of 40% per annum if annualised). Subsequently the appellant forwarded forged solicitor correspondence. On receipt of the correspondence RH conducted an internet search and noted that the solicitor named in the letter was working at another firm of solicitors altogether. When approached as to this discrepancy, the appellant claimed that the solicitor had joined another firm but was still looking after the file. At the request of RH the appellant agreed to arrange for a solicitor at the firm supposedly dealing with the insurance arrangements to sign the letter. The appellant then forwarded an email purportedly received from a partner of that firm of solicitors. The email attached forged correspondence in the partner's name that falsely confirmed the existence of the insurance policy. -- 6 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 7 17 Count 3 related to two Investment Loan Agreements - the first, dated 1 May 2020, in the amount of $25 million and the second, dated 7 May 2020, in the amount of $35 million. The $60 million was advanced to Cancun in early May 2020. The $25 million was to be repaid on 1 June 2020 with an agreed rate of return of 3.375% (again more than 40% per annum if annualised). The $35 million was to be repaid on 11 November 2020 with an agreed rate of return of 22.58% (also more than 40% per annum if annualised). Again, the appellant forwarded purported emails to which was attached forged correspondence on the part of the solicitors' firm that falsely verified the existence of the insurance policy. The appellant also created a fake domain name. He used the fake domain name to send the forged correspondence to RH, purportedly directly from the partner of the firm of solicitors. 18 The size of the loans the subject of these two Investment Loan Agreements was such that IH required additional security in the form of bank guarantees. 19 The appellant applied for and obtained two bank guarantees in the amounts of $25,000 and $35,000. He then altered the bank guarantees to falsely represent that they were issued for $25 million and $35 million. The appellant also altered the reference number to the bank guarantees. The appellant sent the bank guarantees to RH from an email address the appellant created. The email address was designed to appear to be a legitimate email address associated with the bank named in the forged bank guarantees. 20 The sentencing judge described count 3 as the most serious in what was a continuing episode of offending (ts 114). 21 The State accepted that the appellant intended to give value for the benefits obtained; did not intend to cause actual economic loss; and subjectively believed that there would be no loss because trading profits would cover all returns. However, the appellant engaged in deceit, with intent to defraud, as he intended, by dishonest means, to expose the victims to the risk of economic loss or detriment, or alternatively, to deprive the victims of an opportunity to prevent potential economic loss or detriment. 22 The fraud was discovered later in May 2020. IH came across a newspaper article about forged bank guarantees. This caused IH to seek confirmation of the authenticity of the bank guarantees provided -- 7 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 8 by the appellant. The bank informed the victims that there were discrepancies between the bank guarantees and the bank's records. When confronted by RH the appellant initially said that his computer had been hacked and he was a victim of fraud. The appellant also sent RH a screenshot of account balances that had been inflated. Subsequently, however, the victims were informed that the solicitors' firm supposedly dealing with the insurance arrangements did not act for the appellant and that the bank guarantees that had been received were not in fact issued by the bank. 23 The victims, together with their investment companies, commenced civil proceedings. A freezing order was obtained. The appellant consented to orders requiring him to do all things necessary to repay the $60 million the subject of count 3. This was returned almost immediately. The appellant had not yet disbursed or caused the disbursement of the $60 million on its receipt. Accordingly, the $60 million was available for repayment. The appellant made other repayments totalling $1.25 million before filing for bankruptcy. Another $2,092,500 was recovered from a company in which the appellant had a financial interest. 24 Accordingly, the victims, through their investment companies, suffered a loss of around $7,757,500 (not including costs and loss of opportunity). The appellant's personal circumstances 25 The appellant was 37 - 39 years of age at the time of the offending and 44 years of age at the time he was sentenced. 26 The appellant grew up in Western Australia. He is the eldest of two sons born to his parents. The appellant had a largely unremarkable upbringing with the exception that, at some time, his parents suffered some financial stress. The appellant's parents eventually separated and the appellant has no contact with his father. In childhood the appellant was a talented cricketer. He represented the State in youth competitions and had, for a time, trained at the Australian Institute of Sport in Adelaide. Thereafter the appellant obtained a contract to play cricket in the United Kingdom. 27 In terms of educational achievements, the appellant completed year 12 studies. -- 8 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 9 28 The appellant has worked in several industries. In a letter of support, which the sentencing judge evidently accepted, the appellant was described as having a strong work ethic and a passion for getting the most out of life. The appellant remained committed to assisting others within his cricket club. He commenced working as a full-time share trader in around 2011. Before that the appellant had met the woman who was to become his wife. They were separated as at the time of the appellant's sentencing. The appellant and his wife have two relatively young children. 29 There was no evidence that the appellant suffered from any adverse physical or mental health conditions. 30 The appellant had no relevant prior criminal convictions. The sentencing remarks 31 The sentencing judge spent some time developing the circumstances of the offending (ts 96 - 97, 100 - 102), the appellant's personal circumstances (ts 97 - 99) and the applicable sentencing principles on which the appellant fell to be sentenced (ts 99, 110 - 111). 32 His Honour also referred to the facts and sentencing outcomes in two so-called 'comparative cases'. Detailed analysis was provided of Singh v The State of Western Australia1 and Wittensleger v The State of Western Australia2 in accordance with his Honour's stated practice (ts 112 - 113). Sentencing judges should not feel obligated to provide such analysis in sentencing remarks, which are directed primarily to the offender and the community second, although it is apparent that, in this particular case, the appellant is well capable of following such remarks. 33 The sentencing judge characterised the appellant's offending as being towards the highest end of the scale of seriousness for offences of its kind (ts 99, 114). However, the offending was not, in the opinion of the sentencing judge, offending 'of the worst kind' (ts 100). In this respect the sentencing judge adopted a submission of the prosecutor that the offending fell short of a 'worst-case fraud' because it was not accompanied by 'extravagant or lavish spending or pure greed' (ts 81). The sentencing judge stated that had the offending possessed this hallmark then it would have been of the 'worst kind' (ts 102 - 103). 1 Singh v The State of Western Australia [2023] WASCA 31. 2 Wittensleger v The State of Western Australia [2014] WASCA 205. -- 9 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 10 34 The sentencing judge identified eight aggravating features of the appellant's offending (ts 100 - 102, 105): 1. The sums of money involved were extremely large. They totalled $71 million. The victims of the offending had ultimately sustained losses in excess of $7.7 million (not including costs). 2. The offending was extremely sophisticated and involved considerable planning. His Honour said that the offending was 'premeditated' and characterised it as being carried out with 'considerable deception', 'treacherous cunning' and 'skilful deceit' (ts 100). The appellant's subterfuge made it more difficult for the victims to detect the fraud. Later his Honour described the steps taken to perpetrate the fraud as 'premeditated, calculated, extremely sophisticated, enduring, callous, dripping with guile and in complete disregard of the financial interests and general wellbeing of your victims' (ts 102). 3. The offending was not a one-off or aberration - it was sustained over a period of 2 years and 3 months. 4. The offending did not come to an end voluntarily. 5. After the deception was discovered, from 21 May 2020 to 12 June 2020 the appellant engaged in 'complicated' and 'further sophisticated conduct' to disguise his wrongdoing (ts 101). This included: (a) sending the victims falsified bank documents; (b) falsely claiming that he had been scammed; (c) impersonating a lawyer; (d) supplying a series of forged documents, purportedly signed by a partner of a firm of solicitors, to lend credence to the scamming claim; and (e) providing fabricated emails and text messages. 6. The offending involved a significant breach of the trust between the appellant and his victims (which trust had been cultivated through many years of business dealings). 7. There were two victims of the offending, one of whom was over 70 years old. -- 10 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 11 8. The offending had caused 'tremendous emotional distress' to the victims (in this respect the sentencing judge referred to victim impact statements that had been provided to the court). 35 The State had accepted that the appellant did not engage in the offending for the purpose of funding a lavish lifestyle. It was, however, accepted on behalf of the appellant that there was some personal gain as a result of the offending. The sentencing judge found that the appellant did not engage in the offending out of greed or to fund a lavish lifestyle, but observed that there was also little to no doubt that the appellant was not engaged in the offending for benevolent or altruistic reasons. The sentencing judge was satisfied that, had the appellant's trading (with the victims' funds) been successful, the appellant would have realised a profit for himself (ts 103 - 104). 36 In terms of mitigating factors, the sentencing judge referred to the following: 1. The appellant had pleaded guilty. However, the pleas of guilty were entered 7 days before the appellant's trial was to commence (7 days having been allocated for the trial). The sentencing judge allowed a 7.5% reduction pursuant to s 9AA of the Sentencing Act 1995 (WA) (ts 105 - 106). 2. The appellant was a person of prior good character (ts 106). 3. The appellant had made partial reparation. The sentencing judge noted, however, that this had occurred after the discovery of the offending and the commencement of civil action. Also, the reparation was not from the appellant's 'own money' but was the very money that had been obtained from the victims through the fraud. It was also after the appellant had made considerable efforts to cover up his wrongdoing. In accepting that some measure of mitigation was appropriate, albeit that these matters were to be taken into account in assessing the level of mitigation afforded by the reparation, his Honour referred to Fleay v The State of Western Australia3 (ts 106 - 107). 4. The appellant had taken steps towards rehabilitation (in this respect the sentencing judge referred to a report received from a treating psychologist) (ts 107 - 108). 3 Fleay v The State of Western Australia [2021] WASCA 214. -- 11 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 12 5. The appellant was genuinely remorseful for his offending (ts 108). However, given various features of the appellant's conduct which the sentencing judge enumerated, the mitigation to be afforded to the appellant by reason of his remorse was 'not at a higher level' - it was 'in the lower end' (ts 108 - 109). 37 The sentencing judge considered that he was not in a position to make any finding as to the appellant's future risk of re-offending. This had the consequence that his Honour was unable to find that the appellant was at a low risk of future re-offending (ts 109 - 110). 38 His Honour was satisfied that a term of imprisonment was the only appropriate disposition (ts 111). The sentencing judge identified the individual terms of imprisonment that he would impose on each count before considering the question of totality (ts 114). His Honour considered that there should be accumulation between the three counts (ts 114). The sentencing judge referred to the totality principle and concluded that, in all the circumstances, the appropriate total effective sentence was 12 years' imprisonment. To bring this about his Honour reduced the sentence on each of count 1 and count 2 and ordered that the sentences on each count be served cumulatively (ts 114 - 115). 39 The sentence was backdated to 3 April 2025 to take account of the time already spent in custody for the offending (ts 115). The parties' submissions on the appeal 40 Broadly speaking, the appellant submits that the 12-year total effective sentence was not commensurate with the seriousness of his offending. He says that there are four circumstances that materially reduce the seriousness of the offending. These are: (1) there was no greed motive; (2) there were a small number of transfers confined to 1 February 2018 and 6 April to 7 May 2020; (3) the victims were sophisticated investors; and (4) he did not engage in the offending for some reason foreign to the purpose for which the money was loaned - ie he did not take the money for his personal use and enrichment, or to fund a lavish lifestyle, but in an attempt to trade securities on the stock market believing that he could generate profits and repay the investors. 41 The appellant contends that the amounts involved in the offending overwhelmed the sentencing outcome. He says, through counsel, that the court should focus on the overall criminality involved in his conduct, not just the dollar amounts of the three transactions. -- 12 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 13 42 The appellant points to various features of the offending in Singh and Wittensleger. The appellant contends that, having regard to those features and the features of the present case, the seriousness of his offending did not greatly exceed the seriousness of the offending in Singh and Wittensleger. Based on the comparable features, as pointed to, the appellant says that his offending did not warrant a total effective sentence that is 50% longer than the total effective sentences imposed in Singh and Wittensleger. 43 Reliance is also placed on Pollock v The State of Western Australia;4 The State of Western Australia v Chapman;5 Wilkie v The State of Western Australia;6 R v Faithfull;7 and Grubb v The Queen.8 44 The State says that the appellant's offending is an extremely serious example of this type of offending. The State relies on the duration of the offending, its sophistication, the scale of the benefit obtained and the scale of the victims' loss. While accepting that there are points of distinction, some of which are favourable to the appellant, the State says that overall the appellant's offending is significantly more serious than the offending in any of the cases relied on by the appellant. The State says that the total effective sentence of 12 years' imprisonment - involving a significant moderation in the sentences on counts 1 and 2 having regard to the totality principle - bears a proper relationship to the overall criminality of the appellant's offending. Applicable legal principles: challenging a total effective sentence based on alleged infringement of the first limb of the totality principle 45 A ground of appeal that asserts that a sentencing judge has infringed the totality principle involves an allegation of implied error. 46 In Roffey v The State of Western Australia, McLure JA (Steytler P and Miller JA agreeing) described the first limb of the totality principle in these terms: The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the 4 Pollock v The State of Western Australia [2011] WASCA 133. 5 The State of Western Australia v Chapman [2012] WASCA 203. 6 Wilkie v The State of Western Australia [2005] WASCA 156. 7 R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554. 8 Grubb v The Queen [2002] WASCA 158. -- 13 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 14 case, including those referable to the offender personally.9 (citations omitted) 47 The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentence has been served: Roffey v The State of Western Australia [26]. 48 The severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle: Giglia v The State of Western Australia10 (as explained in Gaskell v The State of Western Australia).11 49 The general principles governing appeals against sentence contending that error should be inferred on the basis that the total effective sentence infringes the totality principle are well established and need not be repeated. See for example Kabambi v The State of Western Australia12 and Ng v The State of Western Australia.13 The critical issue is whether the length of the total effective sentence is disproportionate to the overall criminality of the offending, having regard to all the circumstances of the case, including those referable to the offender personally, so as to be unreasonable or plainly unjust: Jackamarra v The State of Western Australia.14 50 A matter of primary importance to those principles is that sentencing is a discretionary exercise. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised a sentencing discretion differently. 51 For present purposes, so far as the contention is one of implied error, it suffices to state that the ultimate question is whether on the facts the total effective sentence of 12 years' imprisonment for the appellant's offending is unreasonable or plainly unjust such that the 9 Roffey v The State of Western Australia [2007] WASCA 246 [24]. 10 Giglia v The State of Western Australia [2010] WASCA 9 [40]. 11 Gaskell v The State of Western Australia [2018] WASCA 8 [56], [59], [62]. 12 Kabambi v The State of Western Australia [2019] WASCA 44 [21]. 13 Ng v The State of Western Australia [2025] WASCA 121 [86] - [95]. 14 Jackamarra v The State of Western Australia [2019] WASCA 150 [72]. -- 14 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 15 court must conclude that a substantial wrong has occurred: House v The King.15 The court must be driven to conclude that there must have been 'some misapplication of principle' when regard is had to all of the relevant sentencing factors (including the degree to which the sentence differs from sentences that have been imposed in comparable cases): R v Pham.16 52 For consistency purposes, it is necessary to consider any broadly comparable cases when evaluating whether a total effective sentence infringes the first limb of the totality principle. It must, however, be recognised that, when examining the total effective sentences in offending of a particular kind, the exercise of comparison may be difficult and the usefulness of the broadly comparable cases may be limited. While providing broad guidance, there will often be significant differences in the circumstances of the offending and the offenders. For example, there will often be a different mix of offences, and number of offences and victims, rendering the comparison of limited utility. See Pennetta v The State of Western Australia;17 OTR v The State of Western Australia [No 2];18 and Weston v The State of Western Australia.19 53 The limits of the utility of comparable cases in determining whether there has been an infringement of the totality principle has been recognised in relation to fraud offences: Singh [79]. 54 An absence of broadly comparable cases is not a barrier to this court finding that there has been an infringement of the totality principle: The State of Western Australia v Popal;20 Weston [39]. Consideration and determination 55 The pecuniary benefit gained by the appellant's frauds totalled $71 million. $71 million is, by any measure, an extraordinary amount. So too the loss exceeding $7.75 million suffered because of the appellant's frauds is an extraordinary amount. The extraordinary nature of the benefit gained and loss suffered was readily accepted by the appellant's counsel. However, having accepted these extraordinary features of the appellant's offending, the appellant's counsel sought to 15 House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. 16 R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28](7). 17 Pennetta v The State of Western Australia [2013] WASCA 234 [39]. 18 OTR v The State of Western Australia [No 2] [2022] WASCA 123 [61]. 19 Weston v The State of Western Australia [2025] WASCA 131 [39]. 20 The State of Western Australia v Popal [2020] WASCA 200 [86]. -- 15 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 16 put those matters aside in analysing the seriousness of the appellant's offending by comparison to the offending in Wittensleger and Singh. Counsel for the appellant invited attention to what the appellant 'actually did' (appeal ts 2, 4 - 5, 14). 56 What the appellant 'actually did' was, with intent to defraud and by deceit or fraudulent means, gain a pecuniary benefit of $71 million for his company Cancun - this resulted in a loss to the victims (through their investment companies) that exceeded $7.75 million. So understood, the extraordinary features of the appellant's offending are integral to assessing the overall criminality of his offences viewed in their entirety. 57 In considering what the appellant 'actually did' - and in assessing the overall criminality of the appellant's offences viewed in their entirety - it is necessary to consider the full context of the appellant's criminal conduct. That includes the size of the benefit gained by the frauds and the size of the loss suffered because of the frauds. We will return to these, and other features of the appellant's offending, after dealing with the prior decisions relied on by the appellant as comparable cases. 58 This court has recently explained that there is no established range for fraud offences - this is due to the diverse circumstances in which such offences are committed and the diversity of the personal circumstances of the offenders: Singh [78]. See also Fleay [63]. Nor is it meaningful to say that there are any recognised limits on total effective sentences where there are multiple counts of fraud: Wittensleger [142]. 59 That said, given the prominence that the suggested comparable cases of Wittensleger and Singh had to the appellant's argument, it is necessary to examine those cases and the sentencing outcomes in them. Before doing so two general points should be made. First, two cases alone do not reveal customary sentencing standards or establish an appropriate sentencing range: Hodges v The State of Western Australia.21 Second, in each of Wittensleger and Singh this court refused leave to appeal. Accordingly, neither case provides substantial assistance in the disposition of the present appeal. At the most it can be said that the total effective sentences in the two cases were not even arguably excessive. Neither decision provides any marker as to the upper limits of the proper exercise of the sentencing discretion in those 21 Hodges v The State of Western Australia [2025] WASCA 136 [74](9). -- 16 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 17 cases: Hodges [74](6) - (7). The same point is made in Singh itself [88]. 60 First in time is Wittensleger. The offender in Wittensleger had prior convictions for stealing as a servant. He was not of otherwise prior good character. Personal deterrence was an important sentencing consideration. There were no mitigating factors of any significance. The offender was convicted after trial of 86 counts of fraud contrary to s 409(1)(c) of the Code. During a 14-month period the offender gained a benefit of approximately $6.5 million for a company of which he was the proprietor. The victim of the offender's frauds was a finance company. The offending involved the preparation of false invoices and applications. It was characterised as involving significant effort and a high degree of dishonesty. The outstanding loss to the finance company due to the frauds exceeded $2.5 million. Greed was a motivating factor for the offending - the offender used the money gained to meet personal expenses. 61 The sentencing court imposed a total effective sentence of 8 years' imprisonment. An application for leave to appeal relying on the first limb of the totality principle was refused. Hall J (McLure P and Mazza JA agreeing) stated that the sentence imposed was 'entirely appropriate' [144]. Hall J conducted a review of relevant authorities. This included several of the prior decisions relied on by the appellant in this appeal (ie Grubb, Pollock and Chapman). The sentencing dispositions in the fraud cases considered by Hall J varied but included unsuccessful appeals against a total effective sentence of 6 years and 8 months' imprisonment (Grubb) and a resentencing to a total effective sentence of 8 years' imprisonment (Chapman). Hall J expressly recognised that the amount defrauded was a relevant sentencing factor [143]. 62 In Singh an offender pleaded guilty to 10 counts of fraud contrary to s 409(1)(d) of the Code, one count of property laundering contrary to s 563A(1)(a) of the Code and one count of preparation for forgery contrary to s 474(1) of the Code. The offender made a series of fraudulent representations in connection with the purported development of a software application. By doing so the offender defrauded 10 individuals investing in the project of an amount totalling $1,462,461.70. There were 67 cash transfers over a period of almost 4 years. The court referred to the offender taking elaborate and numerous steps in pursuit of his plan to defraud the investors. The offending was motivated by greed - the offender used the money to -- 17 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 18 fund a gambling addiction and his lifestyle (including flights and accommodation). 63 The only significant mitigating factor was the offender's late plea of guilty. This resulted in a 10% reduction pursuant to s 9AA. The offender had two prior convictions for gaining a benefit by fraud and was not remorseful. 64 An application for leave to appeal against a total effective sentence of 8 years' imprisonment was refused. The court was satisfied that the offending had several features which, taken together, amply justified the characterisation that it was a particularly serious example of offending of this kind. Among other things the court had regard to the total amount that was defrauded [73]. A substantial degree of accumulation was justified by reason of the prolonged offending, its elaborate nature (the offending involved a series of fictitious persons, companies and documents) and the number of victims [74]. Given the need for personal deterrence, the limited mitigating factors and the sentencing standards for fraud offences, the total effective sentence did not arguably infringe the first limb of the totality principle [88]. 65 There is no need to review in detail the other prior decisions mentioned by the appellant (see [43] above). They are not apt comparators with the present case. None of the other decisions involved a fraud or frauds of an amount that makes them even broadly comparable with the offending in the present case. Also, many of the other prior decisions referred to are stealing cases rather than fraud cases. 66 The only prior decision we will mention further is Faithfull. This is an older decision. It ought to be mentioned because the amount stolen by the offender as a servant was nearly $19 million. Accordingly, while the amount involved did not approach the size of the frauds in the present case, it was still a very substantial amount. There are, however, two reasons why the sentencing outcome in Faithfull does not assist in evaluating the total effective sentence in the present case. First, there was an unusual mitigating factor in Faithfull. The offender voluntarily informed his employer of the offending and thereafter assisted in the investigation into individual transactions and in attempting to recover the stolen money. Second, although the sentencing judge acted on a wrong principle, the Full Court was not satisfied that a sufficiently different total effective sentence should have been imposed to satisfy the authorities that then applied on upholding -- 18 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 19 Crown appeals against sentence. In the circumstances Faithfull is of no assistance as a comparable case. 67 The appellant's counsel contends that the appellant's offending, while involving much greater sums of money, 'did not greatly exceed the seriousness of the offending' in Wittensleger and Singh, due to seven factors present in those cases to which his offending favourably compares. In this way the appellant argues that the cases are comparable with his offending, and yet he received a higher sentence. 68 First, the appellant's fraud involved five cash transfers compared to the 86 cash transfers in Wittensleger and the 67 cash transfers in Singh. Second, the appellant's offending was carried out over 2 years and 3 months compared to the 4 years and 1 month in Singh (although the offending in Wittensleger occurred over 14 months). Third, the appellant impersonated seven persons or entities compared to the nine fictitious persons or entities created by the offender in Singh. Fourth, the victims in Singh were unsophisticated. Fifth, the offenders in Wittensleger and Singh were motivated by greed; the appellant was not. Sixth, the appellant was remorseful; the offenders in Wittensleger and Singh were not. Seventh, there was a greater need for personal deterrence in Wittensleger and Singh than in the appellant's case. 69 We accept that, while the sentencing judge was unable to find that the appellant was at a low risk of future re-offending, personal deterrence is a lesser sentencing factor in the present case than it was in either Wittensleger or Singh. Also, the appellant was of otherwise prior good character (unlike the offenders in Wittensleger and Singh) and remorseful. However, the dominant sentencing consideration in white-collar offending of the present kind is general deterrence. It follows that an offender's favourable personal circumstances do not have the same importance as in other types of offence. The mitigating weight to be afforded to favourable personal circumstances must be moderated by the need to deter other would-be white-collar offenders: Fleay [49] - [50]. 70 Accordingly, while these matters are material considerations to be taken into account, standing alone they are subsidiary considerations to be afforded lesser weight. 71 The sentencing judge's finding that the appellant did not engage in the offending out of greed must be placed in context. It echoes the prosecutor's acknowledgement that the appellant's frauds were not -- 19 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 20 accompanied by extravagant or lavish spending or pure greed. The offending was, however, borne out of an intention to trade in securities on the stock market and for the appellant to thereby realise a profit for himself. The appellant was not motivated by pure greed; but he was nonetheless motivated by an intention that he profit from the frauds. This aspect of the appellant's offending, while not as serious as the motive of greed identified in each of Wittensleger and Singh, was still an aggravating factor of considerable importance. 72 The difference in the duration of the offending is not significant in this exercise. In all three cases the offending was persistent and prolonged. The offending persisted for a longer period in Singh and a shorter period in Wittensleger. Moreover, in a finding that is unchallenged on appeal, the sentencing judge held that the appellant's offending did not come to an end voluntarily. Also, while there were many more individual instances of cash transfers in Wittensleger and Singh, it cannot be said that the appellant's offending was isolated or was an aberration. In any case, so far as the $5 million the subject of count 1 was available to Cancun to be deployed in its securities trading activities, there was lesser call for the appellant to be engaged in ongoing fraudulent activities in smaller amounts as was the case for the offenders in Wittensleger and Singh. The cash transfer numbers are therefore not a significant factor. 73 Nor, all the more so, is anything to be taken from the slightly fewer impersonations in the appellant's case compared to the number of fictitious persons and entities created by the offender in Singh. In both cases the nature of the frauds was elaborate and intricate, significantly increasing the seriousness of the offending. The appellant engaged in a sophisticated deception that was marked by his willingness to appropriate the personas of identifiable legal practitioners and financial institutions to carry out a complicated series of frauds. The manner in which the appellant carried out his frauds had the potential to result in serious reputational risk to those persons and institutions in addition to the harm that was suffered by the victims of the frauds through their investment companies. 74 The appellant seeks to make a virtue of the circumstance that his victims were business people rather than the unsophisticated victims in Singh. It is true that the appellant's victims are experienced business people. They were nevertheless vulnerable. IH and RH's vulnerability arose from the trust that they reposed in the appellant after many years -- 20 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 21 of business dealings. One of the aggravating factors of the appellant's offending was that the offending involved a breach of that trust. 75 A feature of the appellant's offending is that the victims, consistently with their status as experienced business persons, acted prudently and cautiously. The victims were conscious of the risk attendant on the transactions - hence why they sought that the obligation to repay the funds be insured. IH and RH actively interrogated the communications and documents purportedly received in relation to the transactions. Yet, by reason of what was a particularly elaborate and intricate series of frauds, the appellant was able to gain a pecuniary benefit for Cancun in an amount of $71 million. This was a highly sophisticated series of deceptions having a tendency to undermine the trust and confidence of the investing public in the financial and legal system. Such frauds are detrimental to the efficient conduct of commerce. To avoid being exposed to the risk of frauds of this kind investors must engage in protective measures that come at considerable cost. Alternatively, investors cease to be willing to invest because of the risk of such frauds. In each case there is a detriment suffered by the wider community. 76 It follows from what has been stated at [67] - [75] above that we are not persuaded that the total effective sentence of 12 years' imprisonment imposed on the appellant is inconsistent with the sentencing outcomes in Wittensleger and Singh such that the total effective sentence imposed on the appellant is unreasonable or plainly unjust. 77 The seven factors relied on by the appellant to attempt to bridge the gap between the seriousness of the appellant's offending and the offending in Singh and Wittensleger do not compel the contrary conclusion. That is all the more so where: (1) the pecuniary benefit gained by the frauds in each of Wittensleger and Singh is a fraction of the pecuniary benefit gained by the frauds in the present case (less than 1/10th in the case of Wittensleger and approximately 1/50th in the case of Singh); and (2) the total effective sentences of 8 years' imprisonment in each of Wittensleger and Singh did not even arguably infringe the first limb of the totality principle. The higher total effective sentence in the present case is consistent with, and commensurate to, the substantially more serious offending on the part of the appellant so far as his frauds involved the extraordinary amount of $71 million. -- 21 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 22 78 The foregoing largely deals with the substance of the appellant's argument in support of the single ground of appeal. However, having specifically addressed the appellant's argument so far as it was based on Wittensleger and Singh, it remains necessary to deal with the overriding allegation that the total effective sentence infringes the first limb of the totality principle. We are not satisfied that implied error of this kind has been established. To the contrary, the total effective sentence imposed on the appellant bears a proper relationship to the overall criminality involved in all of the appellant's offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to him personally and to all relevant sentencing factors. A breach of the first limb of the totality principle has not been demonstrated. 79 In reaching that conclusion we are conscious of the maximum penalty prescribed for the individual offences. Where the maximum penalty for each of the three fraud offences contrary to s 409(1)(c) of the Code is 7 years' imprisonment, and the appellant has pleaded guilty and received a 7.5% reduction pursuant to s 9AA of the Sentencing Act, a total effective sentence of 12 years' imprisonment appears firm. At the least it requires an appellate court to pause and carefully consider the complaint that there has been an infringement of the first limb of the totality principle. However, by reference to the following four considerations, we have ultimately concluded that there is no implied error of the kind contended for by the appellant's single ground of appeal. 80 First, for the reasons given by the sentencing judge (see in particular [33] - [38] above) as well as the further matters discussed in these reasons, the appellant's offending was at the upper end of the scale of seriousness for offences of its kind. 81 The pecuniary benefit gained by the appellant's frauds totalled $71 million. That, as has been said, is an extraordinary amount. It is true that, as the appellant's counsel submits, the appellant either applied or intended to apply the funds gained through the frauds to securities trading. Accordingly, at the level of generality at which the relevant submission was advanced by the appellant's counsel, this was not a case where an offender simply duped a person into advancing money on the basis that it would be applied to a specific activity and then applied the money for another purpose altogether. But to suggest that the appellant acted and intended to act in a manner that was faithful to the specific -- 22 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 23 activity as represented to the victims ignores what the appellant 'actually did' (to use the appellant's counsel's phraseology). 82 The appellant represented, falsely, that Cancun's obligation to repay the principal sum the subject of the Investment Loan Agreement was insured. Had the repayment obligation in fact been insured the contemplated securities trading activity would have involved no or no appreciable risk to the victims' investment companies. By carrying out or intending to carry out securities trading activity when the repayment obligation was in fact uninsured - contrary to what had been represented - the appellant exposed the victims (through their investment companies) to the risk that Cancun would be unable to repay the amounts advanced under the Investment Loan Agreements. Although, as had been intended, where disbursed the funds advanced under the Investment Loan Agreements were applied to securities trading, that trading risked the repayment of the funds so advanced in a manner that was never contemplated by the victims. 83 So understood, the submission that the appellant did not engage in the offending for a reason foreign to the purpose for which the money was advanced misses the point. Moreover, it is the risk of the potential loss of the $71 million that informs the gravamen of the seriousness of the offending: NHI v The State of Western Australia.22 That risk matured into an actual loss exceeding $7.75 million. That loss, itself extraordinary, also contributes to the seriousness of the appellant's offending. 84 Coupled with the extraordinary pecuniary benefit gained by the frauds, and the extraordinary loss that was suffered as a result of the frauds, is the elaborate and intricate nature of the appellant's deceptions. We will not repeat what has already been summarised as to the nature of the frauds. The sentencing judge was correct to describe this in the terms reproduced at [34](2) above. When the deception was discovered the appellant engaged in further subterfuge in an attempt to deflect the victims from uncovering his fraudulent activities. That also impacts on the seriousness of the offending. 85 Finally, also accentuating the seriousness of the offending, is the appellant's breach of trust - such that even the victims as experienced business persons were vulnerable - and the adverse impact that frauds of this elaborate and intricate nature have on the wider commercial community (as has been outlined above). 22 NHI v The State of Western Australia [2021] WASCA 32 [62]. -- 23 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 24 86 Second, although the appellant's personal antecedents were positive, and he was remorseful and had taken steps towards rehabilitation, the mitigating weight of these favourable personal circumstances is to be moderated. 87 There are other mitigating factors. The appellant provided partial restitution. In large part, however, this involved the return of the undisbursed $60 million after the frauds were discovered and civil proceedings were commenced. The circumstances in which the payment was made - and that it was undoubtedly money held on constructive trust for the victims' investment companies - reduces the mitigatory weight attaching to the restitution. See Fleay [52] - [53]. It can, however, be inferred that the $1.25 million paid before the appellant's bankruptcy involved a degree of sacrifice on the part of the appellant. 88 Otherwise mitigation arose from the appellant's pleas of guilty. However, the appellant's guilty pleas were late. The sentencing judge was justified in only allowing a 7.5% reduction pursuant to s 9AA. That reduction was properly reflected in the total effective sentence of 12 years' imprisonment. 89 Third, for reasons already given, the total effective sentence of 12 years' imprisonment is consistent with the sentencing outcomes in the two comparable cases as predominantly relied on by the appellant (ie Wittensleger and Singh). 90 Fourth, there is no challenge to any of the individual sentences. The sentencing judge was well aware of the necessity to adjust the sentencing outcome in the application of the totality principle. His Honour did not order that the individual sentences on each count be served cumulatively on each other. That would have resulted in a total effective sentence of 15 years and 10 months' imprisonment. To avoid infringement of the first limb of the totality principle the sentencing judge moderated the individual sentences on counts 1 and 2. They were reduced from 5 years and 2 months' imprisonment to 3 years and 3 months' imprisonment. It was appropriate for there to be a substantial degree of accumulation given the separate and distinct nature of each fraud and the serious nature of each fraud. A different judge might have been inclined to accumulate to a lesser degree. It cannot be said, however, that having regard to all relevant sentencing considerations the degree of accumulation applied by the sentencing judge was not reasonably open. -- 24 of 25 -- [2026] WASCA 84 JUDGMENT OF THE COURT Page 25 91 Standing back, and evaluating the four considerations we have mentioned, both individually and collectively and in the context of the other matters that bear on the sentencing factors relevant to the appellant's offending as mentioned in these reasons, we are not satisfied that the total effective sentence is unreasonable or plainly unjust such that a substantial wrong has occurred or there has been some misapplication of principle. No implied error is revealed from the sentencing outcome. The total effective sentence of 12 years' imprisonment imposed on the appellant was within the range open on a proper exercise of the sentencing discretion. The first limb of the totality principle was not infringed. The appellant's single ground of appeal must be dismissed. Conclusion and orders 92 The total effective sentence of 12 years' imprisonment imposed on the appellant was firm. The single ground of appeal had a rational and logical prospect of succeeding. There should be leave to appeal on the single ground of appeal. However, for the reasons we have given, the single ground of appeal fails. It follows that the appeal must be dismissed. 93 The following orders should now be made: 1. The appellant has leave to appeal on the single ground of appeal contained in the appellant's case dated 17 July 2025. 2. The appeal is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. PD Associate to the Hon Justice Vaughan 25 JUNE 2026 -- 25 of 25 --