Former adviser loses appeal against 10-year sentence
The Court of Criminal Appeal has dismissed an appeal from a former adviser who received a 10-year prison sentence for dishonest conduct with SMSF investor money.
Former financial adviser Gabriel Nakhl, who was previously convicted of eight charges of engaging in dishonest conduct, sought an appeal against a 10-year sentence imposed by the Sydney District Court last year.
The conduct affected 12 investors while Mr Nakhl was a representative of Australian Financial Services Limited, now in liquidation, and as sole director of SydFA Pty Ltd, which is now deregistered, ASIC said in a public statement.
The court found Mr Nakhl advised clients to set up SMSFs and to invest their superannuation and other funds in products such as shares, managed funds and high-interest rate bank accounts.
According to the court documents, the applicant used clients’ funds as he pleased, including paying some of his personal and business expenses, depositing funds into his personal share and options trading accounts, making unauthorised investments on behalf of his clients, and using the funds to reimburse his other clients.
The applicant also made false representations to his clients about the value of their investments and how their funds had been invested. As a result of his dishonest conduct, the total loss to his clients was approximately $5,121,168.
The applicant was sentenced for eight counts of engaging in dishonest conduct in relation to providing financial services contrary to s 1041G(1) Corporations Act 2001 (Cth).
A further four offences of the same kind were taken into account on a schedule pursuant to s 16BA Crimes Act 1914 (Cth) (Crimes Act).
A maximum penalty of 10 years of imprisonment applied to each count on the indictment. A maximum penalty of five years of imprisonment applied to each offence on the s 16BA schedule.
In his appeal, Mr Nakhl submitted that the sentence was manifestly excessive when proper consideration was given to it and there should have been a finding that the objective seriousness was not as high as the original judge had assessed.
He submitted that the court should “impose a lesser sentence and that the independent exercise of the sentencing discretion ought lead to a different and less severe total effective sentence and non-parole period”.
The applicant failed to establish grounds for appeal and the appeal was dismissed.
Miranda Brownlee
Miranda Brownlee is the deputy editor of SMSF Adviser, which is the leading source of news, strategy and educational content for professionals working in the SMSF sector.
Since joining the team in 2014, Miranda has been responsible for breaking some of the biggest superannuation stories in Australia, and has reported extensively on technical strategy and legislative updates.
Miranda also has broad business and financial services reporting experience, having written for titles including Investor Daily, ifa and Accountants Daily.
