Federal Court of Australia

Commonwealth Director of Public Prosecutions v D’Amore [2026] FCA 972

ORDERS

THE COURT ORDERS THAT:

1. Mr Stavro D’Amore is convicted of Charge 1, Charge 2 and Charge 3.

2. On Charge 1, Mr D’Amore is to be sentenced to 17 months’ imprisonment to commence on 23 July 2026.

3. On Charge 2, Mr D’Amore is to be sentenced to 20 months’ imprisonment, to commence on 22 July 2027.

4. On Charge 3, Mr D’Amore is to be sentenced to 20 months’ imprisonment to commence on 21 September 2028.

5. Pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), a single non-parole period of 23 months is fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1 Mr Stavro D’Amore falls to be sentenced for three offences against the Corporations Act 2011 (Cth) (Corporations Act) which relate to the misappropriation of funds (Charges 1 and 3) and provision of false and misleading statements to the Australian Securities and Investments Commission (ASIC) (Charge 2) during his directorships of Berndale Capital Securities Pty Ltd (Berndale) (ACN 113 616 032), Berndale Capital Securities Management Pty Ltd (BCSM) (ACN 606 118 736) and Algoplus Pty Ltd (Algoplus) (ACN 605 329 575) (collectively, the Berndale companies or the Berndale group).

2 On 30 April 2026, Mr D’Amore pleaded guilty to the following offences, each being a rolled-up charge:

(1) Charge 1: dishonest use of position as a director, contrary to s 184(2) of the Corporations Act (maximum penalty, 5 years’ imprisonment and/or 2,000 penalty units);

(2) Charge 2: making or authorising the making or giving of false or misleading statements contrary to ss 1308(2) and 1311(1) of the Corporations Act (maximum penalty, 5 years’ imprisonment and/or 200 penalty units); and

(3) Charge 3: dishonest conduct in relation to a financial product or financial service in the course of carrying on a financial services business, contrary to ss 1041G and 1311(1) of the Corporations Act (maximum penalty, 10 years’ imprisonment and/or 4,500 penalty units).

3 (References to maximum penalties are to those which applied at the time of the commission of the offences).

Offences

4 The matter proceeded by way of an agreed statement of facts (ASOF or agreed facts). The following summary is taken from that statement.

5 As referred to above, these offences relate to Mr D’Amore’s conduct during his directorships of the Berndale companies. Mr Daniel Kirby was Mr D’Amore’s co-director for each of these companies.

6 Mr D’Amore was a director and the Chief Executive Officer (CEO) of Berndale. Berndale’s primary business and principal activities were trading as a ‘Market Maker’ in Foreign Exchange and other derivatives. Berndale was registered as an Australian company on 1 April 2005 and went through various name changes (first known as Forex TG Pty Ltd (Forex TG), then Berndale Group Pty Ltd, then Berndale Capital Securities Pty Ltd), where ultimately on 19 June 2018, the name was changed to Berndale Capital Securities Management Pty Ltd (BCSM).

7 Algoplus was registered as an Australian company on 16 April 2015 with Mr D’Amore as the director and sole shareholder. It held a bank account through which the other Berndale companies conducted transactions. It did not have any trading activities. As explained further below, the Algoplus account was used by Mr D’Amore as a means of siphoning funds out of the Berndale business to the benefit of himself and his associates.

8 From 16 August 2005 to 22 November 2018, Berndale was the holder of an Australian Financial Services Licence (AFSL) under s 913B of the Corporations Act. On 28 July 2016, ASIC varied the conditions of Berndale’s AFSL. Berndale’s AFSL authorised it, amongst other things, to provide advice in relation to, and to trade in, foreign exchange and over-the-counter (OTC) derivatives, subject to several conditions, including requiring it to:

(1) retain Net Tangible Assets (NTA) of at least the greater of $1 million or 10% of average revenue of the licensee;

(2) lodge with ASIC an opinion by a registered company auditor for each financial year with respect to Berndale’s compliance with certain financial conditions under its AFSL; and

(3) hold client monies in a segregated account.

9 BCSM was a corporate authorised representative of Berndale under its AFSL, entitling it to provide financial services on behalf of Berndale from 28 May 2015 to 22 November 2018.

10 Mr D’Amore was the Responsible Manager under Berndale’s AFSL from 22 November 2011 and the key person (pursuant to s 912A(1)(e) of the Corporations Act and reg 105.112 of the ASIC Regulatory Guide 105, AFS licensing: Organisational competence (ASIC Regulatory Guide 105)) from 31 July 2012.

11 As mentioned above, Mr D’Amore was the director of Berndale, and also BCSM and Algoplus from their respective registration dates.

12 As the CEO of Berndale, Mr D’Amore stood at the apex of the Berndale companies’ management structure. His role included dealing with accountants, auditors and regulators, managing the group’s finances, and managing the payment of employees. Mr D’Amore was primarily responsible for submitting reports to Berndale’s accountants and for Berndale’s NTA obligations.

13 During the period of the offending, Mr Kirby was his co-director for all three companies. Mr Kirby was appointed director and Chief Operating Officer of Berndale on 6 August 2014, director of BCSM on 5 June 2015, and director of Algoplus on registration.

14 On 22 November 2018, ASIC cancelled Berndale’s AFSL.

Relevant accounts of the Berndale companies

Domestic bank accounts

15 The Berndale companies conducted their business via bank accounts held with the Commonwealth Bank of Australia (CBA).

16 As of 18 April 2019, Berndale and BCSM funds were held in the following accounts with the CBA:

(1) two accounts held in the name of “Forex TG” (Berndale’s former name), being a term deposit account and a business transaction account; and

(2) five accounts held in the name “Berndale Capital Securities Pty Ltd” which were opened in or around July 2015, prior to the company changing its name to “Berndale Capital Securities Management Pty Ltd” on 19 June 2018 (BCSM CBA Accounts):

(a) an Australian dollar account number 063-000 12791174 (Deposit Account);

(b) an Australian dollar account number 063-000 12791182 (Segregated Client Account);

(c) a Great British pound account number 063-000 12812019;

(d) a United States dollar account number 063-000 12802099; and

(e) a Euro dollar account number 063-000 12802101.

17 Algoplus held an Australian dollar CBA account (account number 063-000 12781021) (Algoplus Account).

18 Mr D’Amore, along with Mr Kirby, was a signatory on these CBA accounts, and had a unique user identifier number (user ID) for the purpose of operating the accounts. When a transaction was made via electronic transfer, the trace details maintained by the CBA would record the user ID that authorised the transfer.

19 Mr D’Amore and Mr Kirby were the only persons authorised to transact on the bank accounts of the Berndale companies.

Operation of BCSM CBA Accounts and source of funds in Algoplus Account

20 The Deposit Account and Segregated Client Account represented Mr D’Amore’s and Mr Kirby’s attempts to comply with various legislative provisions governing how AFSL holders must deal with client funds.

21 As a general rule, client funds were deposited into the Deposit Account. The deposits were then frequently transferred to the Segregated Client Account, which was the pool of client funds maintained by the by Berndale in accordance with s 981B of the Corporations Act.

Charge 1 – dishonest use of position as a director

22 Between 3 January 2017 and 22 November 2018, the date when Berndale’s AFSL was cancelled, Mr D’Amore transferred: $855,677.76 from the Deposit Account to the Algoplus Account; and $6,848,674.58 from the Segregated Client Account to the Algoplus Account. Mr D’Amore knew that the funds in the Algoplus Account were primarily derived from client funds deposited into the BCSM Deposit Account.

23 Mr Kirby also made a number of transfers from the Segregated Client Account to the Algoplus Account during the same period.

Transfers from Algoplus to 458 Holdings

24 Between 1 January 2017 and 22 November 2018, Mr D’Amore transferred $912,152 from the Algoplus Account to 458 Holdings, a company of which Mr D’Amore was the sole director and regarded as his personal company.

25 During that period, Mr D’Amore received the following monthly salary as director of Berndale and BCSM, transferred from the Algoplus Account to the 458 Holdings Account:

(1) from January to August 2017, Mr D’Amore received a monthly salary of $30,000;

(2) in September 2017, Mr D’Amore’s monthly salary increased to $35,000; and

(3) From 1 October 2017 to December 2018, Mr D’Amore’s monthly salary increased to $40,000.

26 Between 17 January 2017 and 24 August 2018, Mr D’Amore made fourteen transfers from the Algoplus Account to the 458 Holdings Account in excess of his remuneration, totalling $106,376. The purpose of the transfers was to give Mr D’Amore control over the funds and allow him to apply them for his personal benefit and expenses.

27 These transfers were dishonest because Mr D’Amore knew: the funds in the Algoplus Account were derived from BCSM company funds; he had no entitlement to receive funds derived from Berndale and/or BCSM for his personal use in excess of his renumeration; and the transfers were not in the commercial interest of either Algoplus or Berndale. The transfers had no discernible commercial benefit for the Berndale Companies. The payments made the financial position of BCSM worse. Having received funds from Berndale for no consideration, Algoplus was obliged to repay them. By diverting those funds for personal use, Mr D’Amore impaired Algoplus’ ability to repay BCSM.

Transfers from Algoplus to McCullough Robertson for the purchase of Lot 15303

28 Mr D’Amore made a number of transfers to McCullough Robertson, a commercial law firm, in relation to the purchase of three apartments, for himself and his associates. Mr William Tomlinson provided conveyancing services to Mr D’Amore and other relevant purchasers in relation to the properties.

29 Ms Natasha Doumani and Mr James Doumani purchased Lot 15303 for $1,273,500 with a deposit of $127,350 owing. The first contract of sale was improperly executed and the final contract of sale was signed on 5 October 2017.

30 On 5 September and 11 September 2017, Mr D’Amore transferred $50,000 and $75,000 respectively from the Algoplus Account to McCullough Robertson’s trust account. The transfers were credited against its account for Lot 15303, and the amount of the deposit was transferred out of that account on 12 November 2019, in connection with settlement of the lot.

31 The transfer was dishonest because it enabled Mr Doumani and Ms Natasha Doumani to make use of Berndale and/or BCSM company funds to which Mr D’Amore knew they were not entitled.

Transfers from Algoplus to McCullough Robertson for the purchase of Lot 15103

32 Ms Natalie Doumani purchased Lot 15103 for $1,238,000 with a deposit of $123,850 owing. The first contract of sale was improperly executed, and the final contract of sale was signed on 3 October 2017.

33 Between 27 and 29 September 2017, after the first attempt to execute the contract but prior to the second successful attempt, Mr D’Amore transferred $150,000 from the Algoplus Account to McCullough Robertson’s trust account. The transfers were credited against its account for Lot 15103, and the amount of the deposit was transferred out of that account on 16 November 2019, in connection with settlement of the lot.

34 The transfer was dishonest because it enabled Ms Natalie Doumani to make use of Berndale and/or BCSM company funds to which Mr D’Amore knew she was not entitled.

Transfers from Algoplus to McCullough Robertson for the purchase of Lot 15307

35 Mr D’Amore purchased Lot 15307 for $558,000 with a deposit of $55,800 owing. Mr D’Amore signed a “draft contract” on 26 September 2017.

36 On 27 October 2017, Mr D’Amore transferred $53,800 from the Algoplus Account to McCullough Robertson, who credited the transfer against its account for Lot 15307. On the same day, Mr D’Amore emailed Mr Tomlinson to confirm he had paid $53,800. The transfer was recorded as a directors’ loan in Berndale’s Xero accounts. The funds were not repaid to Berndale as at the time of signing the agreed facts

37 On and from 18 June 2019, Mr D’Amore took steps to assign the contract for sale to Mr Christopher Madafferi and was successful. In his voluntary interview with ASIC, Mr D’Amore said he assigned the contract to Mr Madafferi because he realised he could not afford to complete the contract.

38 The transfer was dishonest because it enabled Mr D’Amore to gain an advantage for himself using Berndale and/or BCSM company funds to which he knew he was not entitled, because it was in addition to his remuneration as a director.

Charge 2 – making a false or misleading statement in a document

39 In September 2017, the then Financial Ombudsman Service, now the Australian Financial Complaints Authority, notified ASIC of the significant number of complaints it had received in relation to Berndale. On 14 December 2017, Mr Steven Bebic of ASIC emailed Mr D’Amore a letter in relation to ASIC’s review of Berndale’s compliance with its AFSL obligations.

40 Berndale retained Mr Jacob Uljans of law firm Hall & Wilcox on or around 21 December 2017 to assist them in responding to ASIC’s enquiries.

41 Charge 2 relates to various documents Mr D’Amore authorised to be provided to ASIC officers in the course of their review of Berndale’s compliance with the terms of its AFSL. The documents were banking records which had been falsified.

42 These documents related to a purported account held with Hongkong and Shanghai Banking Corporation (HSBC). Company records of HSBC UK Bank plc and HSBC Bank Australia Limited, and investigations by Berndale’s liquidators and receivers, indicate the HSBC account did not exist. Despite this, Mr D’Amore and Mr Kirby represented the HSBC account was part of Berndale’s net equity and company assets used to meet the minimum NTA requirement.

43 Berndale also had access to a software program, Nitro Pro, which had functionalities that allowed the conversion of documents to different formats.

Authorisation of a false ‘Account Standings’ document dated 14 December 2017

44 On 9 February 2018, Mr Uljans sent an email to Mr Bebic, attaching an ‘Account Standings’ document dated 14 December 2017. This document was signed by Mr D’Amore. The document stated that Berndale’s account with HSBC had a balance of $544,487.

45 By signing the ‘Account Standings’ document and having these provided to ASIC via Mr Uljans, Mr D’Amore intentionally authorised the making of the relevant statement in the document – that Berndale held funds in an HSBC account, when no such account existed.

Authorisation of a false ‘balance sheet’ document dated 28 February 2018

46 On 15 February 2018, ASIC issued notices to Berndale pursuant to ss 912C and 30 of the Australian Securities and Investments Commission Act 2001 (Cth), requiring Berndale to provide ASIC with bank account statements for bank accounts held, and a written statement containing information and details about those accounts used, particularly those which it relied upon to satisfy its NTA requirements.

47 In response, on 27 February 2018 Mr D’Amore sent an email to Mr Bebic attaching, amongst other material, a document titled “Balance Sheet – BERNDALE GROUP PTY LTD – As at 28 February 2018”. The balance sheet recorded the HSBC-8838 account as having a balance of $538,036.96. Mr D’Amore knew the information was false.

48 By emailing the balance sheet document to Mr Bebic at an ‘@asic.gov.au’ email address, Mr D’Amore intentionally authorised the making of the relevant statement in the document, that Berndale held funds in an HSBC account, when he knew no such account existed.

Authorisation of a false HSBC Account statement dated 14 February 2018

49 On 13 March 2018, Mr D’Amore sent an email to Mr Bebic titled “Re: Update to response”, that was apparently a further response to ASIC’s notices to Berndale issued on 15 February 2018. It attached, among other things, a document that purported to be a statement of account for HSBC-8838 dated 14 February 2018, showing a balance on that day of $425,103. The offender knew the document was a forgery.

50 By emailing this statement of account Mr Bebic, Mr D’Amore authorised the contents of the document, including that the HSBC account existed and held those funds.

Charge 3 – engaging in dishonest conduct in the course of carrying on a financial services business

51 Berndale’s AFSL was cancelled by ASIC on 22 November 2018, following an investigation into Berndale that commenced in December 2017.

52 Around 3.55 pm on 22 November 2018, Ms Jacqueline Aherne of ASIC made a telephone call to Mr D’Amore and informed him that ASIC had made a decision regarding Berndale’s AFSL.

53 At around 4.22 pm, Mr D’Amore called Mr Kirby twice.

54 At 4.37 pm, Mr Aherne emailed Mr D’Amore attaching ASIC’s decision, which was to cancel Berndale’s AFSL and ban Mr D’Amore from providing financial services for a period of 6 years.

Transfers from Algoplus to Mario D’Amore

55 On 22 November 2018 at 4.50 pm, Mr D’Amore transferred $100,000 from the Algoplus Account to a CBA account in the name of Mr D’Amore’s brother, Mr Mario D’Amore, which had been opened the day before. Mr Mario D’Amore had never worked for the Berndale companies.

56 On 5 December 2018, $100,000 was refunded into the Algoplus Account by Mr Mario D’Amore shortly after ASIC’s commencement of proceedings against Berndale in this Court.

Transfers from Algoplus to Jonas Vong

57 Between 26 November 2018 and 4 December 2018, Mr D’Amore transferred $147,000 from the Algoplus Account to his associate, Mr Jonas Vong, via three transactions:

(1) 26 November 2018: $90,000;

(2) 29 November 2018; $50,000; and

(3) 4 December 2018: $7,000.

58 Each transfer was made using Mr D’Amore’s user ID.

59 Mr D’Amore knew Mr Vong had no entitlement to those funds.

Transfers from Algoplus to 458 Holdings

60 Between 26 November 2018 and 6 December 2018, Mr D’Amore transferred $50,000 to his personal company, 458 Holdings, via two transactions:

(1) 26 November 2018: $10,000; and

(2) 6 December 2018: $40,000.

61 Both transfers were made using Mr D’Amore’s user ID.

62 Mr D’Amore knew he had no entitlements to those funds.

63 For the transactions to Mr Mario D’Amore, Mr Vong and 458 Holdings, Mr D’Amore knew the funds in the Algoplus Account were derived in part from transfers made by Mr D’Amore and Mr Kirby from the Deposit and Segregated Client Accounts, in circumstances where: ASIC had just cancelled Berndale’s AFSL and ordered Berndale to wind down its financial services businesses; and the funds in the Deposit and Segregated Client Accounts from which the Algoplus transfers originated were either client funds or part of company funds.

64 There was no discernible benefit to Algoplus or the other Berndale companies in respect of his transactions to Mr Mario D’Amore, Mr Vong or 458 Holdings. The transactions made the financial position of BCSM worse as it resulted in a $297,000 reduction in the cash assets of BCSM and compromised Algoplus’ ability to repay the money transferred from and owing to BCSM.

Transfers from BCSM to Algoplus

65 Between 27 November 2018 and 4 December 2018, Mr D’Amore transferred $139,320.98 from the Deposit Account into the Algoplus Account via five transactions:

(1) 27 November 2018: $44,590.28;

(2) 28 November 2018: $49,000;

(3) 29 November 2018: $10,000;

(4) 1 December 2018: $25,990; and

(5) 4 December 2018: $9,740.70.

66 The funds in the Deposit Account had been deposited by Berndale’s clients.

67 The funds the subject of those transfers were subsequently applied by Mr D’Amore towards the various transfers from the Algoplus Account alleged in charge 3, among others, in circumstances where ASIC had just cancelled Berndale’s AFSL and ordered Berndale to wind down its financial services business. Mr D’Amore knew that Algoplus had no entitlement to Berndale client funds.

68 The agreed facts also recited some relevant passages from Mr D’Amore’s voluntary interview with ASIC which occurred on 16 October 2020.

69 On 12 May 2023 Mr D’Amore and Mr Kirby were arrested and charged.

Sentencing principles

70 Mr D’Amore is to be sentenced in accordance with Pt IB of the Crimes Act 1914 (Cth) (Crimes Act), which requires that the sentence imposed by the Court be of a “severity appropriate in all the circumstances of the offence”: Crimes Act s 16A(1).

71 In determining the sentence, in addition to any other matters, the Court must take into account the matters set out in s 16A(2) as far as they are relevant and known to the Court.

72 The sentencing process involves the judge weighing all the relevant circumstances and making a judgment as to what is the appropriate sentence. It involves the balancing of many different and conflicting features in a process known as “instinctive synthesis”: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [75]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian) at [51].

73 That said, general deterrence is generally of particular importance in “white collar” offending because offending of this nature is difficult to detect, investigate and prosecute successfully.

74 The importance of general deterrence in white collar crime is emphasised in Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1 (Gregory) at [53]:

In seeking to ensure that proportionate sentences are imposed, the courts have consistently emphasised that general deterrence is a particularly significant sentencing consideration in white collar crime and that good character cannot be given undue significance as a mitigating factor and plays a lesser part in the sentencing process. ... Moreover, general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration.

75 As succinctly explained by Wood J in R v Pantano (1990) 49 A Crim R 328 at 330:

... those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust ... to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crimes of the kind here involved, or of the possibility for substantial loss by the public… The element of general deterrence is an important element of sentencing for such offences…

76 When greater weight is attached in the balancing process to general deterrence, it necessarily follows, at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors: R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 67 at [28]; Tran v The Queen [2021] VSCA 292 at [7]; Forrest v Commonwealth Director of Public Prosecutions [2026] FCAFC 69 (Forrest) at [164]; Commonwealth Director of Public Prosecutions v Fairfull [2026] FCA 748 at [36].

77 Further, it is a feature of white collar crimes that offenders are likely to have no prior convictions, to have good character references and to have good prospects of rehabilitation: Director of Public Prosecutions (Cth) v Page [2006] VSCA 224 at [37]. However, such factors may be of lesser significance for white collar crimes, since it is that factor which normally places the offender in a position where they are able to commit the offence: R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 (Rivkin) at [410]; Forrest at [236].

78 Charges 1, 2 and 3 are all rolled-up charges. That is, a charge in which more than one contravention of the relevant offence provision, or more than one episode of criminality, is particularised as part of the charge. This approach is adopted in some cases where there is a guilty plea and consent from the offender’s counsel because otherwise the charges would offend the rule against duplicity: R v Jones [2004] VSCA 68 at [13]; Director of Public Prosecutions (Cth) v Nippon Yusen Kabushiki Kaisha [2017] FCA 876; (2017) 254 FCR 235 at [206]-[207]. The maximum penalty for the offence remains the same as if it were a single offence. However, the objective criminality of the offence is greater for the offender than if there was only one charge: Forrest at [220].

79 The maximum penalties applicable to this offending are described above. In respect of maximum penalties, in Markarian, the plurality observed at [31]:

… careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

80 Mr D’Amore is to be sentenced on the basis of the maximum penalties as they were at the time of the offending. I note for example, s 184(2) of the Corporations Act has trebled since his offending.

81 It is important to recall that in sentencing, a court may not take into account facts adverse to the interests of the offender unless those facts are established beyond reasonable doubt. For facts in favour of the offender, it is enough that those facts are proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]. The onus is on the offender to establish those mitigating factors. That said, as noted above at [31], s 16A of the Crimes Act requires that those matters be taken into account so far as they are “relevant and known to the court”. That phrase is not to be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted: Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [21]-[22].

Material relied on

82 The Crown tender bundle included the agreed facts dated 4 June 2026.

83 Mr D’Amore relies on:

(1) Psychological assessment report of Mr D’Amore by Ms Gina Cidoni dated 23 June 2026;

(2) Letter of apology and remorse from Mr D’Amore dated 9 June 2026;

(3) Character reference from Mr John Walsh dated 9 June 2026;

(4) Character reference from Mr Antonio D’Amore and Ms Mirsini D’Amore dated 9 June 2026;

(5) Character reference of Ms Sandra Duong undated;

(6) Character reference from Ms Sarina Bailey dated 9 June 2026;

(7) Myhab rehabilitation clinic letter dated 19 February 2025;

(8) Report of Ms Christine Harding regarding Mr Anthony D’Amore dated 9 June 2026;

(9) Report of Ms Christine Harding regarding Ms Isabella D’Amore dated 9 June 2026;

(10) Report of Ms Christine Harding regarding Ms Katia D’Amore dated 9 June 2026;

(11) Patient health summary of Ms Mirsini D’Amore dated 15 May 2026;

(12) Patient health summary of Mr Antonio D’Amore dated 15 May 2026; and

(13) Mr D’Amore’s undertaking concerning repayment dated 2 July 2026.

Consideration

84 Mr Kirby was sentenced for relatively similar offences against the Corporations Act, which relate to the provision of false and misleading information to auditors (Charge 1) and the misappropriation of funds (Charges 2 and 3) during his directorships of the Berndale companies: Commonwealth Director of Public Prosecutions v Kirby [2025] FCA 757.

85 It is important to recall that Mr D’Amore is to be sentenced based on the offences to which he pleaded guilty, the agreed facts in this case, and the relevant matters in this sentence hearing. That said, given Mr Kirby and Mr D’Amore are co-offenders, issues of parity arise for consideration, to which I will return.

The nature and circumstances of Mr D’Amore’s offences

86 As in the case of Mr Kirby, the offences to which Mr D’Amore has pleaded guilty reflect an ongoing, deliberate disregard by him for the responsibilities he held and the trust reposed in him, given his position in the Berndale companies. Mr D’Amore was the CEO of Berndale and the director standing at the apex of the Berndale group’s management structure. The offending occurred over a period of just under two years and involved multiple acts of dishonesty. Mr D’Amore’s conduct displayed a complete and sustained disregard for the regulatory obligations imposed by the Corporations Act that concern how client money should be dealt with by AFSL holders; the fiduciary obligations he owed as a director; and the interests of Berndale’s clients, who had entrusted their funds to a licensee that Mr D’Amore knew was not meeting its regulatory requirements.

87 The conduct in charges 1 and 3 involved Mr D’Amore dishonestly using funds derived from clients. Mr D’Amore was able to commit these offences because of his position in this Berndale group. He used his position to transfer funds from the Algoplus account, an account primarily funded by client monies through which the Berndale companies conducted their transactions, for purposes unconnected to any legitimate business purpose of Algoplus or Berndale. The conduct in charge 2, which was deliberately undertaken to mislead ASIC, significantly undermined the protections that exist in the regulatory scheme for people who invest money in companies like Berndale, which provide financial services.

88 Each charge is a rolled-up charge, which represents greater criminality than for a single charge that is not rolled-up.

89 To begin, Charge 1 covers conduct committed between 17 January 2017 and 24 August 2018 with the total amount of funds dishonestly transferred in the course of this charge being $435,176. During that time, on 14 occasions Mr D’Amore transferred funds in the amount of $106,376 from the Algoplus Account to the 458 Holdings Account (held by a company of which he was the sole director, that he regarded as his personal company). In addition, on three occasions in September 2017, Mr D’Amore transferred funds from the Algoplus Account to McCullough Robertson’s trust account for the purpose of funding property deposits for Ms Natasha Doumani, Mr Doumani and Ms Natalie Doumani, persons associated with him who had no entitlement to those funds. The amount of these property deposits totalled $275,000. On 27 October 2017, Mr D’Amore also transferred $53,800 from the Algoplus Account to McCullough Robertson’s trust account, for a deposit to purchase a property in his own name.

90 During this time, Mr D’Amore also made false and misleading representations to ASIC. ASIC’s review of Berndale’s compliance with the conditions of its AFSL was active from at least December 2017. As the Responsible Manager and CEO of Berndale, Mr D’Amore was primarily responsible for Berndale’s NTA obligations. He had been informed ASIC was conducting a review of Berndale’s AFSL compliance by at least 14 December 2017. The conduct reflected in charge 2 relates to three occasions from 9 February 2018 to 13 March 2018, where Mr D’Amore authorised documents containing false statements to be sent to ASIC during ASIC’s review. These representations related to a purported HSBC bank account which Mr D’Amore knew did not exist or hold any funds. Mr D’Amore’s conduct in authorising the false documents provided to ASIC deliberately subverted ASIC’s regulatory oversight process. The documents were to satisfy ASIC that Berndale was meeting its NTA requirement under its AFSL, which is a regulatory measure designed to ensure that retail OTC derivative issuers carry sufficient financial resources to protect against operational risk and to protect consumers. The purpose of each of the false representations was to deceive ASIC. Three separate false documents were sent to ASIC over a five-week period to create the impression that Berndale was meeting its NTA requirements. The conduct was designed to enable Berndale to continue operating, despite not complying with the conditions on its AFSL licence.

91 Then, upon being informed by ASIC that Berndale’s AFSL had been cancelled and he had been banned from providing financial services, Mr D’Amore transferred Berndale funds on 11 occasions to himself, his brother, and an associate, amounting to $297,000, in effect stripping the company of funds. That conduct is encompassed in charge 3. The cancellation meant that Berndale’s ability to generate legitimate income thereafter would be extremely limited. The transfers had the effect of frustrating the ability of the authorities to obtain funds held by the company.

92 Following the cancellation of Berndale’s AFSL and Mr D’Amore being banned from providing financial services, the Berndale group collapsed, going into liquidation. In February 2025, the liquidator of Berndale distributed a first and final dividend of 4.5 cents in the dollar to 128 creditors (of which 123 were former Berndale clients) who had claims totalling $5,531,772.35. The Berndale group incurred a total of $5.2 million in debts that will remain unpaid. As the prosecution submitted, the collapse of the Berndale group illustrates the type of risk to which Australia’s system of corporation regulation is addressed. This is the type of conduct which tends to erode the confidence of market participants.

93 As previously explained, on 5 December 2018, shortly before ASIC commenced proceedings against Berndale in the Federal Court, Mr Mario D’Amore refunded the $100,000 transferred to him by Mr D’Amore. Mr Vong also repaid $90,000 of the $147,000 transferred to him by Mr D’Amore, although it is unclear when this occurred. Up until shortly before this plea hearing, the amount of funds lost to the liquidator as a result of the offences to which Mr D’Amore pleaded guilty was $542,497 (the repayments from Mr Mario D’Amore and Mr Vong are not included in that figure). I note also the five dishonest transfers of funds from accounts held by BCSM into the Algoplus account, described at [65] above, are not included in that figure as that money was not lost to the liquidator. On 2 May 2026, Mr D’Amore made a voluntary payment to the liquidator of $43,800. At the time of the sentence hearing, the amount not recovered by the liquidator was $498,376. That is the loss suffered by the Berndale companies’ creditors as a result of Mr D’Amore’s offences. As I will return to below, on the day of the sentence hearing, Mr D’Amore signed an undertaking to repay that outstanding amount.

94 As explained in Kirby, there are broad ramifications from this offending: Kirby at [73]. Offences of this nature undermine the integrity of Australia’s financial markets and system of corporate regulation and erode the confidence of participants in the commercial world. Victims of these types of crimes are not confined to those who directly suffered through loss of their funds, but extend to the investing public at large, “the injury being that related to the loss of confidence in the efficacy and integrity of the market in public securities”: Rivkin at [412].

95 As observed in Joffe v R; Stromer v R [2012] NSWCCA 277; (2012) 82 NSWLR 510 at [34], the objects of chapter 7 of the Corporations Act include, “as a central element, the promotion of public confidence in the fairness and honesty of markets for financial products. An important feature of that promotion of confidence is the presence of criminal offences for recognised market misconduct” and “[c]onfidence in the honesty and integrity of the financial markets is of the utmost importance in an economy and a society which depend significantly for their well-being on the efficient operation of such markets”.

Mr D’Amore’s account in relation to the offending

96 Mr D’Amore did not give evidence at the sentence hearing. Rather, Mr D’Amore’s counsel made submissions on his behalf as to the offences, based on his instructions. Counsel submitted that Mr D’Amore now takes full responsibility for his offending. Counsel stressed that Mr D’Amore was not attempting to diminish or minimise his offending. The submissions advanced were relevant to explaining the conduct and assessing the objective seriousness of the offending.

97 The prosecution submitted that Mr D’Amore sought to minimise the seriousness of his offences, and his role relative to Mr Kirby, his co-director and co-offender. It was submitted that Mr D’Amore’s role in the offending was greater than Mr Kirby’s. The prosecution acknowledged that both directors held senior positions in the Berndale companies, but submitted Mr D’Amore had the greater role in controlling the business, was more experienced, and had a more forceful personality. To support its submission, the prosecution referred to instances where Mr D’Amore had attempted to minimise his role in the offending.

98 Mr D’Amore challenged this submission. He denied he was attempting to minimise the seriousness of the offences. In particular, he challenged the submission that he was more senior than Mr Kirby in the company, contending Mr Kirby’s involvement with the business predated Mr D’Amore becoming director and Mr Kirby had authorisation in respect to foreign currency accounts.

99 Mr D’Amore’s submissions (and his description to Ms Cidoni, a psychologist) in relation to his offences and his relative relationship with Mr Kirby do have the effect of attempting to minimise the seriousness of his conduct, and the offending. I do not accept Mr D’Amore’s submissions to the contrary. At times his submissions were inconsistent with the agreed facts, which are the basis of his plea. There was no evidence given by Mr D’Amore to support his submissions. Nor did he point to any other evidence in support.

100 The following examples suffice to illustrate.

101 First, in relation to charge 1 and the three transfers of funds to various members of the Doumani family. In written submissions, after referring to each of the transfers, Mr D’Amore submitted the funds benefitted the Doumanis, with whom Mr D’Amore had broader business interests:

The transferred funds did not benefit Berndale clients who had provide those funds and the offence was committed. These payments were made for the introduction of clients by brokers to Mr D’Amore, which generated revenue for the Berndale companies through client acquisition and trading volume. That benefit was indirect and not properly accounted for, and the funds of other clients should not have been used to this effect and Mr D’Amore accepts that he committed the offence as charged. It is, however, of some relevance that Mr D’Amore did not personally benefit directly from those transfers.

(emphasis in original)

102 As the prosecution submitted, that implies the Doumanis had some kind of entitlement to the funds Mr D’Amore transferred as consideration for services rendered, and that the problem was an absence of proper accounting. That is directly contrary to the agreed facts, where Mr D’Amore admitted that each of the transfers was dishonest because it enabled the Doumanis to make use of Berndale and/or BCSM company funds to which Mr D’Amore knew they were not entitled. The agreed facts record that there was no discernible benefit to Algoplus or the other Berndale companies in respect of any of these transactions, as the Berndale companies did not receive any consideration for same. The three transactions made to the Doumanis made the financial position of BCSM worse as they resulted in a $275,000 reduction in the cash assets of BCSM. On the agreed facts, Mr D’Amore was aware that the Doumanis had no entitlement to the funds, although Mr D’Amore’s written submission plainly suggests otherwise.

103 On the topic of the transfers made to the Doumanis in charge 1, I note also that when Mr D’Amore was first asked about these payments by the liquidator on 24 September 2020, Mr D’Amore said on oath that he was unaware of these payments, and he did not authorise them. As apparent from the agreed facts, in his October 2020 voluntary interview with ASIC, Mr D’Amore gave a different version of the events. He said he had met Mr Doumani a couple of times on the Gold Coast, but otherwise had no prior relationship. In the ASIC interview, Mr D’Amore said he could not recall why he transferred the amounts but suggested there would have been an agreement that led to the Doumanis giving Berndale a certain number of marketing leads and a marketing plan. That is, the payments were for services rendered.

104 Mr D’Amore disputed the significance and relevance of the earlier versions of events that he had given to the liquidator and ASIC, on the basis that at that time he was not being candid and taking responsibility, which he says has changed. He submitted that while he was not remorseful at the time of the interviews in 2020, he feels remorse now. The purpose of the prosecution referring to these inconsistent versions of events is to illustrate that Mr D’Amore has previously given false accounts in relation to the payments to the Doumanis. This is relevant to assessing the veracity of any submission Mr D’Amore now advances, without evidence, about the circumstances of the offending in charge 1. Mr D’Amore’s submission about the transfers to the Doumanis is, on the prosecution submission, another version of the conduct. It is inconsistent with the agreed facts. The explanation for the transfers in written submissions is an attempt to minimise his conduct in respect of those transfers in charge 1

105 Second, in relation to the second charge, Mr D’Amore submitted that:

It is noteworthy that Mr D’amore did not have operational access to foreign bank accounts, which was Mr Kirby’s domain, and he did not forge the document dated 14 February 2018 which was prepared through the connivance of Mr Kirby and Mr Tanoski.

106 While Mr D’Amore acknowledged that he knew the information he conveyed to ASIC about the HSBC account was false, he submitted he did not create or fabricate documents himself. But Mr D’Amore is not charged with forging the document sent to ASIC on 14 February 2018. Rather, the criminality of that conduct in respect of charge 2 is that Mr D’Amore emailed the forged HSBC bank statement to an ASIC officer. He knew it was a forgery. By providing the account statement to ASIC, Mr D’Amore authorised the contents of the document. He did so as the responsible officer of Berndale’s AFSL. To say he did not forge the document does not mitigate the seriousness of the conduct involved in the offence. Further, this is also just one of three documents containing statements Mr D’Amore knew to be false which he provided to ASIC. Mr D’Amore’s submission does not attempt to explain or address these other false statements.

107 Third, in relation to the transfer of funds to his brother Mr Mario D’Amore, which is included in charge 3, Mr D’Amore submitted that he believed the transaction was made in error. That is, it was a mistake. There is no explanation or submission as to how that was said to have occurred. In his interview with ASIC, Mr D’Amore said in relation to this transfer that “he probably meant to transfer it to the Algoplus account and therefore probably did it in error”. However, that explanation does not sit with the fact the transfer to Mr Mario D’Amore came from the Algoplus Account.

108 Mr D’Amore noted in his submission that Mr Kirby also told investigators he erroneously transferred funds to Mr Mario D’Amore, referring to the sentencing reasons in that matter. I note if that is relied on by Mr D’Amore to support his submission, as apparent from those reasons, Mr Kirby did not maintain that explanation on his plea.

109 Mr D’Amore’s submission about the transfer to Mr Mario D’Amore being an error is inconsistent with his acceptance by his plea that his conduct at the time it occurred was dishonest. Further, the premise of the submission is also inherently improbable. This is in a context where Mr D’Amore also transferred money to Mr Vong and himself, when neither had an entitlement to it. It will also be recalled that Mr D’Amore was informed by ASIC at 3.55 pm on 22 November 2018 that Berndale’s AFSL was cancelled. Mr D’Amore then called Mr Kirby twice at 4.22pm. At 4.50 pm, Mr D’Amore transferred $100,000 from the Algoplus Account to a CBA account in the name of his brother, which had been opened the day before. As Mr D’Amore accepted, there was also a transfer by Mr Kirby. That transfer was of $100,000 to Mr Mario D’Amore’s CBA account by at 4.28 pm that same day. That chronology does not support the submission that the transfer to Mr Mario D’Amore was made in error. That Mr Mario D’Amore transferred the money received back to Algoplus shortly before ASIC commenced proceedings against Berndale does not alter Mr D’Amore’s dishonestly in transferring the funds to him. That was acknowledged by the plea to this offence.

110 Fourth, in relation to the transfers to Mr Vong which are also included in charge 3, Mr D’Amore submitted that Mr Vong was a business development manager with Berndale at the time and was entitled to some payments. However, Mr D’Amore accepts the payments exceeded those entitlements and “were not properly accounted for as part of the business”. This is in contradiction to the agreed statement of facts, which records that Mr D’Amore knew that Mr Vong had no entitlement to the money transferred. The plea of guilty also reflects the transfers were dishonest. The transfers occurred at a time after Berndale’s AFSL had been cancelled, when Mr D’Amore was transferring money out of the business to the benefit of himself, his brother and his close associate. That Mr Vong may have at an earlier time been paid money by Berndale to which he was entitled does not alter the nature of the transfers that are the subject of charge 3.

111 Fifth, I note Mr D’Amore submitted it was of some relevance in relation to some of his conduct in charge 1 and 3 that he did not personally benefit or did not directly benefit from the transfer of funds: see e.g. [101] above. It is difficult in the circumstances to see how choosing to transfer the money to others lessens the seriousness of the offences. The breach of his responsibilities as the CEO and director of Berndale, and the damage done to the Berndale companies is the same, regardless of where Mr D’Amore chose to send the funds. On each occasion he transferred funds to himself, his personal company or another individual, Mr D’Amore knew the recipient had no entitlement to the funds and that the transfers were dishonest. It was similarly dishonest when Mr D’Amore transferred funds from BCSM to Algoplus when there was no entitlement. The prosecution submitted that Mr D’Amore had the attitude that his friends and associates could and should, at different times, share in the largess that was the funds available to him through the Berndale business. That submission is supported by his conduct, as evident from the ASOF.

112 I note that Mr D’Amore’s submissions make no reference to the circumstances in which he transferred money to himself in charges 1 and 3, except to acknowledge acceptance of responsibility.

113 Fifth, the psychological report of Ms Cidoni (relied on by Mr D’Amore) recorded that Mr D’Amore attributes part of his offending “to his reliance on others, saying [he] ‘put too much trust in other people’”. Ms Cidoni conducted her assessment of Mr D’Amore on 16 June 2026. Mr D’Amore submitted that sentence should not be understood as him blaming others, and it should be read in the context of the entire report. However, Ms Cidoni recorded in the conclusion to her report that Mr D’Amore “attributed the conduct to misplaced trust in others and to conduct he came to recognise as wrong only afterwards”. The plain meaning of that sentence suggests Mr D’Amore’s offending involved a misplaced reliance on others. Nothing in the agreed facts supports that description of the conduct. The statement by Mr D’Amore as recorded was in general terms. The prosecution submitted that this statement likely was referring to the conduct in charge 2 when it is considered in conjunction with the submission by Mr D’Amore that he was not personally involved with the forgery of the document. Mr D’Amore says that submission is pure speculation. It is unnecessary to determine what, if any charge Mr D’Amore was referring to. Irrespective of this, I accept the prosecution submission that this statement tends to deflect responsibility for Mr D’Amore’s actions onto others.

114 Further, his statement that he only recognised the conduct was wrong afterwards is inconsistent with the agreed facts (e.g. he knew the documents he provided to ASIC were a forgery (in charge 2), he knew that the recipients were not entitled to the money he transferred to himself and his associates (in charge 1) or to himself, Algoplus and others (in charge 3)). His description of the offending as recorded in the psychological report creates the impression he was misled by other people, when he was not. The representations he made to Ms Cidoni, as recorded in her report, do minimise the seriousness of his conduct.

115 Before leaving Ms Cidoni’s report, it is appropriate to address the submissions about the marriage breakdown. The prosecution referred to Mr D’Amore having told Ms Cidoni that the period of offending coincided with the breakdown of his marriage in September 2018 and the closure of Berndale in November 2018. In that context, the prosecution correctly pointed out that the offending began earlier, in January 2017. It was also submitted by the prosecution that the timing of Mr D’Amore’s marriage breakdown is difficult to reconcile with the fact that he was in a relationship with another woman who was not his wife, from October 2017. Mr D’Amore submitted that that is not a fair representation, and the marriage breakdown is not inconsistent with being in a relationship with another woman. At the sentence hearing, Mr D’Amore’s counsel submitted that it is “likely, almost inevitably probable, that things were very much breaking down in his marriage, and that was leading into the offending behaviour, and to the collapse when his licence is revoked. So we would just invite a slightly more nuanced approach to that”. Whatever might be said about the timing of the marriage breakdown, there is no basis to suggest that stress, anxiety and depression from that had any role in the offending.

116 Against that background, it is appropriate to address the submission as to the relative roles of Mr D’Amore and Mr Kirby in the company, and in respect to the offending. The agreed facts support the prosecution’s submission that Mr D’Amore was the more senior person, and his role in the offending was greater than that of Mr Kirby. That includes that Mr D’Amore:

(1) “stood at the apex of the Berndale group’s management structure” as CEO of Berndale. His role included dealing with accountants, auditors and regulators, managing the group’s finances, and managing the payment of employees;

(2) was “primarily responsible” for submitting obligation reports to Berndale’s accountants and for Berndale’s NTA obligations;

(3) was appointed Responsible Manager under Berndale’s AFSL from 22 November 2011 and was the key person from 31 July 2012; and

(4) became a director of Berndale on 4 November 2015, replacing his predecessor and retaining that role until the conclusion of the period of offending.

117 Mr D’Amore has a significant professional history in the financial services industry and held the position as Responsible Manager of the AFSL before Mr Kirby joined the firm in 2012.

118 Pursuant to s 912A(1)(e) of the Corporations Act and reg 105.112 of ASIC Regulatory Guide 105, ASIC will impose a key person condition on a financial services licensee if the licensee appears heavily dependent on the capacity, knowledge and skills of one or two responsible managers. Responsible managers designated as key persons have additional responsibilities under the licensing regime. As referred to above, Mr D’Amore was designated the key person for Berndale.

119 In addition to those agreed facts, the prosecution submission is supported by evidence provided to ASIC by former employees of Berndale that Mr D’Amore was the more dominant of the two men and was regarded as the key decision-maker. Mr D’Amore submitted that caution ought to be exercised in relation to this evidence, submitting that in the passages relied on, the investigators were asking leading questions. However, properly read that is not so. In respect to Mr Christopher Kaltzidis, an ex-employee of Berndale, the investigator was referring to earlier answers he had given. The answers of Mr Borce Tanoski, another ex-employee, included explanations. Mr Tanoski described that Mr D’Amore made the day-to-day decisions, and Mr Kirby and other employees went to him as the boss. He described that although Mr D’Amore and Mr Kirby were 50 percent owners of the business, Mr D’Amore made “99 percent of the decisions. He had been in the industry a long time. All came down from him, so he ran – he ran the place”. That is reflected in his position as CEO at the apex of the Berndale group’s management structure.

120 Further, the offences to which Mr D’Amore pleaded guilty also provide some support that he was the more dominant person in the relationship vis a vis the offending. For example, over charge 1 and charge 3 Mr D’Amore transferred funds to himself, his personal company, the Doumani family, his brother and his associate Mr Vong. There is no suggestion in the agreed facts, or any submissions advanced on Mr D’Amore’s behalf, that Mr Kirby was in any way involved in Mr D’Amore’s decision to transfer those funds.

121 Mr D’Amore’s submission that he was less senior than Mr Kirby appears to rely on the fact Mr Kirby’s involvement with the Berndale companies pre-dated Mr D’Amore becoming a director, his pre-existing knowledge of banking arrangements, and his direct operational role with foreign currency accounts. The submission fails to grapple with the evidence referred to above. It does not address the agreed facts as to Mr D’Amore’s position at the apex of the Berndale companies, nor does it refer to him being the responsible officer and key person on the AFSL from 2011 and 2012 respectively.

122 I accept the prosecution submission that is a further illustration of minimisation.

123 For the reasons explained above, I accept that Mr D’Amore has attempted to minimise his offending conduct. That is, his explanations provide justifications or excuses for the conduct, which are intended to lessen his culpability. This includes the relative position of himself to Mr Kirby within the company. The evidence establishes that Mr D’Amore was more senior than Mr Kirby and he was at the apex of the Berndale group’s management structure. He was the boss, whose position was at the highest echelon of the company. He was more dominant in running the business. It can be inferred he set the tone of the business.

124 In my view, given the nature of Mr D’Amore’s conduct and the manner and circumstances in which it was undertaken, general deterrence is a primary sentencing consideration in this case.

Subjective features

125 Mr D’Amore is 43 years old. He has a Diploma in Engineering Computer Systems from Victoria University (2003), an Advanced Diploma in Financial Planning and Financial Services (2003) and a Mentor Financial Education – Advanced Diploma in Financial Services (2008).

126 Mr D’Amore has consistently held roles in finance, sales and funds management since the 2000s, up until the suspension of his financial services licence in 2018. Between 2019 and 2023 he was only able to obtain labouring and traffic control roles. Since early 2024, he has worked as an independent consultant for Eagle Consulting/Eagle Investment Systems, where he provides motivation, process restructuring, and support services to medium and small enterprises in the areas of resorts/hospitality, logistics, and information technology. At the time of hearing, the business supported six contractors. On 11 November 2024, Mr D’Amore was admitted to a 14-day inpatient program addressing drug, alcohol and gambling addiction which he completed. It also appears he has followed the recommendations of MyHab since finishing that program.

127 As explained above, Mr D’Amore separated from his wife in 2018. They have three children together, aged 15, 13 and 11. It was submitted that they have a supportive relationship and co-parent their children. Approximately 9 months ago, Mr D’Amore re-partnered with another woman. They live together with her two children, aged 7 and 6. His parents are elderly and unwell. I return to his family below.

Guilty plea

128 Mr D’Amore was charged on 12 May 2023. The parties reached an in-principle resolution of the matter on 2 April 2026, before pleas were entered on arraignment on 30 April 2026. Mr D’Amore’s pleas of guilty arose following negotiations between the parties and were indicated shortly before the scheduled pre-trial cross-examination of three witnesses on 9 to 10 April 2026 and several months before his trial was scheduled to commence on 5 October 2026.

129 The Court is required to take into account not only the fact of the plea of guilty, but also its timing and the degree to which the timing resulted in any benefit to the community or any victim of, or witness to, the offence: Crimes Act s 16A(2)(g). In relation to the utilitarian value of the plea, although it is not required under the Crimes Act to quantify and specify an amount attributed to this consideration, in my view it is desirable to do so: see Forrest at [152]. Not only does that provide transparency to the offender, but significantly, it provides guidance to others on the impact of a guilty plea on the sentencing process.

130 The parties submitted that Mr D’Amore’s pleas carry significant utilitarian value, by sparing the community a lengthy trial. So much can be accepted. Mr D’Amore submitted that there had been negotiations for some time following the final disclosure of material by the prosecution. He submitted that there were various interactions before an agreement was reached, which is not an uncommon pathway in complex matters. Again, so much can be accepted. There is no further information before me about Mr D’Amore’s plea. I note Mr Kirby’s plea was also a result of negotiation.

131 However, as apparent from s 16A(2)(g), the timing of the plea is relevant to this consideration. It is not a plea at an early stage of the proceeding. This is to be contrasted with Mr Kirby, who indicated his pleas shortly before a contested committal hearing was to commence. That committal hearing occurred in September 2024, and on 16 September 2024 Mr D’Amore was committed to stand trial. Generally, the earlier the plea the greater the utilitarian benefit. That relates to not just the saving of court time, but the benefits more generally to the criminal justice system that accrue from an early plea.

132 I reduced Mr Kirby’s sentences by 25 percent for the utilitarian value of his pleas. As counsel for Mr D’Amore accepted, his pleas would not attract that amount. In the circumstances, I reduce each of Mr D’Amore’s sentences by 15 percent to reflect the utilitarian value of his pleas.

133 The remaining subjective matters which are reflected by the plea, being remorse, contrition and the facilitation of the administration of justice, are taken into account in the instinctive synthesis process. I address these further below.

Remorse and contrition

134 Mr D’Amore submitted that his pleas of guilty evidence his remorse, contrition, intention to facilitate the course of justice and his acceptance of responsibility for the offending. He relies on a letter he wrote to the Court in which he expresses “deep and genuine remorse for what occurred”. He states he is “acutely aware” of the harm he caused to his clients, former employees and their families, and to his family.

135 He also relies on the several references tendered on his plea (identified above) to speak to his genuine remorse and rehabilitation since the offending. Some of the references are very general in that they do not address or describe the conduct that Mr D’Amore undertook. The references are also unclear as to when Mr D’Amore expressed the remorse they describe, given that he did not indicate until recently that he was pleading guilty. Up until that time, Mr D'Amore had filed a defence statement denying the offences. Based on this, I take the remorse referred to in those references to have been expressed recently. Further, I note that the authors of some of those references also opine Mr D’Amore has not sought to minimise his offending conduct or has been open about the seriousness of the offending. While that may be the authors’ genuine view, they are not in a position to assess whether that is so, as they are not apprised of the material available to the Court. As apparent from my findings above, Mr D’Amore has sought to minimise his offending conduct.

136 Mr D’Amore also relied on Ms Cidoni’s report, but in this regard her opinions must be based on his statements to her that he is remorseful and he accepts full responsibility. I note that her report is based on, amongst other things, untested hearsay statements by Mr D’Amore. This is also in the context of statements by Mr D’Amore to Ms Cidoni about the offences which, as explained above, attempt to minimise his conduct. Mr D’Amore submitted that those statements should be read in the context of his acceptance of full responsibility.

137 Mr D’Amore also submitted that his voluntary payment of $43,800 and his undertaking to repay the outstanding $498,376 is a genuine expression of remorse. The prosecution indicated that on sentence they would seek a reparation order for that amount pursuant to s 21B of the Crimes Act. I take into account Mr D’Amore’s consent to a reparation order being made for that outstanding amount, which has the effect of formalising the undertaking. An order for reparation is not a penalty. It follows that a person cannot be imprisoned for a failure to comply with the order. Rather, the amount is recoverable as a civil debt: R v Foster [2008] QCA 90; [2009] 1 Qd R 53 at [72]. I have taken the undertaking and the consent to the order into account as evidence of Mr D’Amore’s remorse and acceptance of responsibility.

138 In determining whether the plea evidences Mr D’Amore’s remorse, that he accepted responsibility, and that he was willing to facilitate the course of justice, the strength of the prosecution’s case may be relevant. The prosecution submitted that the pleas were entered in the face of a strong prosecution case, submitting by way of example:

(1) Mr D’Amore’s CBA user ID is electronically recorded on transfers underlying charges 1 and 3;

(2) he personally emailed the false Account Standings document and the forged HSBC bank statement to ASIC;

(3) he signed the Account Standings document personally; and

(4) he admitted in his voluntary interview with ASIC to purchasing Lot 15307 using Algoplus funds.

139 Of those matters, the conduct in charge 3, after D’Amore had been told by ASIC of the cancellation of Berndale’s AFSL, stands as an obvious example. Further, this is in the context of Mr D’Amore’s central role and the control he exerted within the company, relevant in particular to the matters referred to in charge 2. That said, although the prosecution case appears to be strong, on the material before me, the extent of that is difficult to assess.

140 The prosecution accepted Mr D’Amore has expressed remorse and regret, and acknowledges the wrongfulness of his actions and the harm it caused to his clients. They acknowledged the recent voluntary payment of $43,000 to the liquidator and the undertaking to pay the outstanding $498,376. However, as the prosecution submitted, Mr D’Amore has displayed a persistent unwillingness to accept the full nature and extent of his wrongdoing. Mr D’Amore’s repeated attempt to minimise his role in the offending and its seriousness, as outlined above, reflects that. His submissions indicate he has not accepted the full extent of his dishonest conduct. Further, as explained above, any remorse has only come later in time. Mr D’Amore’s counsel conceded as much, as Mr D’Amore gave false versions of the events relating to the transfers to the Doumanis in 2020 to the liquidators and in his voluntary interview with ASIC.

141 I accept that Mr D’Amore is now remorseful and contrite, and his pleas reflect a willingness to facilitate the course of justice. However, it does not follow he fully recognises or accepts the seriousness of his conduct. I consider that his remorse is not complete, but is tempered by his minimising of his offending, which reflects an inability to acknowledge the full nature and extent of his conduct.

Prior good character

142 Mr D’Amore submitted that his prior criminal matters are limited and not relevant to the subject offending. He relied upon the positive character references provided on this plea. However, as already explained, good character may be of lesser significance for white collar crimes, since it is that factor which normally places the offender in a position where they are able to commit the offence: Rivkin at [410]. It is said that the fact that people of otherwise good character and compelling personal circumstances are tempted to engage in such conduct emphasises the need for a clear deterrent for offending of this nature: see e.g. R v Glynatsis [2013] NSWCCA 131; (2013) 203 A Crim R 99 at [79]; Gregory at [53]; Forrest at [236], [253].

143 In this case, Mr D’Amore’s good character put him in the position to commit these offences.

144 In that circumstance and given the nature and extent of Mr D’Amore’s conduct in this case, in my view good character has less weight than it might otherwise have.

Rehabilitation

145 The prosecution accepted that Mr D’Amore has reasonable prospects for rehabilitation. However, it was submitted that there are reasons for circumspection in assessing Mr D’Amore’s rehabilitative prospects. First, his offending occurred over a period of just under two years and involved multiple dishonest acts and decisions. Second, he has tended to obfuscate and minimise his responsibility for the offending.

146 Mr D’Amore referred to the opinion of Ms Cidoni that he presents a low risk of further offending of the nature now before the Court. Ms Cidoni opines this is so because the conduct arose in a specific occupational setting to which he no longer has access. She pointed to the fact he has no relevant prior convictions, and “his offending was confined to a discrete period coinciding with the breakdown of his marriage and the collapse of his business”. She described that his “expressed acceptance of wrongdoing, his engagement in treatment, and the stability of his current circumstances further reduce the likelihood of recurrence, the principal protective consideration being the removal of the professional position and authority that the offending depended upon”. As evident from reasons already given, various of the factual premises of the opinions have not been accepted (e.g. the context in which the offences were committed, that it was a discrete period of time, and the extent of Mr D’Amore’s acceptance of wrongdoing). Further I note his disqualification from providing financial services has now expired.

147 Mr D’Amore also submitted that the evidence suggests he has taken very strong steps towards rehabilitation. I accept that Mr D’Amore has taken steps in relation to changing his life (e.g. attending the drug and gambling program). However, that lifestyle was not said to be contributory to this offending, but rather occurred as a consequence of the collapse of his marriage and the Berndale companies. It is also apparent that his rehabilitation began recently, with references to his attendance at an inpatient drug and alcohol program in November 2024. On the material Mr D’Amore’s life has changed, although it is difficult to ascertain the timing of when this is said to have occurred. However, as the prosecution submitted, Mr D’Amore has tended to obfuscate and minimise his responsibility for the offending, which impacts on this consideration. That lack of insight and failure to fully accept the extent of his conduct gives rise to caution in the assessment of his prospects of rehabilitation.

148 Nonetheless, I accept that Mr D’Amore has reasonable prospects of rehabilitation.

149 That said, I consider specific deterrence remains a relevant consideration and has a role to play in this sentencing exercise. I accept the prosecution submission that some opinions in Ms Cidoni’s report have relevance on this issue. Ms Cidoni opines:

There were features indicating a readiness to act against social expectation, alongside impulsivity and limited regard for ordinary constraints. A further prominent feature was ambivalent and oppositional responding, marked by irritability and resentment, with passive resistance in the face of demands.

150 Also relevant to the assessment of this consideration is the nature, seriousness and duration of the offending, and the minimisation by Mr D’Amore of his involvement in it. This reflects a lack of insight into the nature and extent of his dishonesty. This is also in a context where Mr D’Amore appears to continue to work in roles adjacent to the finance industry. A measure of specific deterrence is relevant to the consideration of the appropriate sentence, to deter him from engaging in offending of this nature in the future.

Mental health

151 Mr D’Amore relied on the psychological report of Ms Cidoni in relation to his mental health.

152 In so far as Ms Cidoni relied on Mr D’Amore’s description of the offending, for the reasons explained above, I do not accept that description. As explained above, Ms Cidoni also expressed an opinion in respect to rehabilitation which is based on statements made by Mr D’Amore, which have not been accepted. That said, there appears to be no issue between the parties with opinions expressed in relation to Mr D’Amore’s psychological assessment.

153 Ms Cidoni opined that Mr D’Amore’s culpability for the offending was not mitigated by any kind of mental disorder, or by any substance use. She described that there is no basis in the material to find that his understanding of his conduct or his capacity for reasoned and controlled decision-making was impaired by mental illness or intoxication at the time the offending was committed. This was not challenged and I accept this to be the case.

154 Mr D’Amore also relied on Ms Cidoni’s report to submit the fifth and sixth principles in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Verdins) apply (being that the existence of his conditions could mean a sentence would weigh more heavily on the offender than it would on a person in normal health, and there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health). Ms Cidoni’s diagnosis suggested that Mr D’Amore is currently in a moderate depressive episode with anxious distress, and the features of that episode would make a term of imprisonment more difficult for him to tolerate than for a person in sound mental and physical health. The pronounced anxiety response is to the prospect of sentence. She opined that his anxiety, which is presently focused on the consequences of the sentence for those who depend on him, is likely to intensify rather than resolve once those consequences materialise, and his capacity to manage that distress would be reduced in an environment offering him little of the support he currently relies upon. Ms Cidoni also refers to Mr D’Amore having asthma, which she described as a stress-reactive condition, and considered that in combination with other factors in opining on the impact of imprisonment on him.

155 The prosecution accepted that the fifth principle in Verdins has some application, but the evidence does not support the sixth principle applying. In relation to the sixth principle, the prosecution submitted that although the evidence may not establish that there is a serious risk his condition will be adversely affected, that matter should be taken into account in any event. That is because the deterioration, as explained above, would be due to Mr D’Amore being unable to care for his family which can be taken into account under other sentencing principles. I agree with that submission. I take into account the family’s circumstances below, under the impact on his family.

156 That said, as the prosecution submitted, while the moderate depressive episode with anxious distress from which Mr D’Amore is now suffering may provide some basis for mitigation, it must be limited as it appears it is largely reactive to the prospect of being sentenced. That is the kind of anxiety one would ordinarily expect from someone in Mr D’Amore’s position. Nonetheless, I do take the current status of Mr D’Amore’s general mental health into account in the instinctive synthesis.

157 I note also that Ms Cidoni opined on the impact of a sentence of imprisonment on Mr D’Amore’s family and his business. It is unclear how that was within her remit, given she was briefed to do a psychological assessment on Mr D’Amore. I address the matter of the effect on Mr D’Amore’s family below.

Impact on his family

158 Mr D’Amore submitted he has a number of particularly vulnerable dependants, who would suffer hardship by reason of his imprisonment. It was said that it is apparent from the material relied on, that he has significant practical and financial obligations to his children, current partner, and ex-wife. His children have documented psychological difficulties. He also has significant caring responsibilities for his sick and elderly parents. The consequences upon Mr D’Amore’s many dependants are significant and extreme. He submitted it is open to the court to mitigate his sentence because of hardship experienced by third parties without requiring the establishment of exceptionality. As a matter of principle that is correct, and was accepted by the prosecution to be so: see e.g. Totaan v The Queen [2022] NSWCCA 75; (2022) 108 NSWLR 17 at [93]; Director of Public Prosecutions (Cth) v Joyce [2022] FCA 1423 at [158]; Director of Public Prosecutions (Cth) v Aussie Skips Bin Services Pty Ltd [2024] FCA 122 at [255].

159 The prosecution accepts there is a degree of hardship which should be taken into account, which embraces any sentence involving Mr D’Amore being unable to meet his considerable family responsibilities. The prosecution submitted that the volume of commitments attributed to Mr D’Amore, across the materials relied on, simultaneously invites scrutiny as to how day-to-day parental care for his elderly parents (particularly his father) is practically compatible with his other stated activities, including regular travel to Dubai for work.

160 I have considered the submissions and the material in support. Mr D’Amore has travelled overseas on a number of occasions which required bail variations. It is plain that some trips involved weeks away (given the entry of the plea waited until his return to Australia). Mr D’Amore emphasised in submissions that the travel was for work and that was to provide money for his family. Nonetheless travelling as part of his business activities is something he chose to do. Further, the way his submission and some of the references portray his families’ dependence on him and the importance of his presence, or the effect of any absence, does not sit comfortably with that situation. These absences and the arrangements in place during the times when Mr D’Amore is overseas are not addressed in the material relied on by Mr D’Amore or the submissions. However, his absence on work trips gives rise to the inference that there are other arrangements that can be made, for example, in relation to his parents’ care. I note also much of the material on this topic in the references is at a very high level of generality. For example, while there are general statements about reliance on financial support, there is no material about the circumstances or nature of the support, nor Mr D’Amore’s current financial capacity. That said, I accept he does provide support and assistance to his parents, and to his families. I accept there is hardship that others will incur if Mr D’Amore is imprisoned, and I take that into account.

Extra-curial punishment

161 Mr D’Amore submitted that he has suffered from extra-curial punishment which mitigates his sentence. He submitted that he endured a six-year ban from the financial services industry, had his assets frozen, suffered obvious reputational damage, and lost his business and family home. The loss of his family home has also impacted his ex-wife and children. He submitted those adverse consequences are out of the ordinary and are causally related to and flow from the effect of the offending, such that they constitute extra-curial punishment.

162 Mr D’Amore’s ban from the financial services industry, his assets being frozen, that he has suffered reputational damage and lost his business, are all ordinary consequences of his criminal conduct. These are matters directly related to the nature and circumstances of his offending. To commit the offences, Mr D’Amore relied on his good character, being at the highest echelons of his business, and his experience in the financial services industry (which placed him as the key person designation on the Berndale AFSL).

163 As the prosecution submitted:

The cancellation of the AFSL and the Offender’s banning from the industry is not a disproportionate or extraneous detriment falling outside the ordinary consequences of the offending. A person who dishonestly uses a position of trust within a regulated industry, and who deliberately deceives the regulator responsible for overseeing that industry, cannot say that exclusion from that industry is anything other than the natural and inevitable consequence of having been caught doing so.

164 As to the loss of the family home, that resulted from the asset preservation orders. As the prosecution submitted, those orders were a response to the scale of the dishonest conduct including dishonest transfers in excess of $400,000 (charge 1) and a further $297,000 (charge 3). The prosecution submitted that the loss of an asset preserved, or ultimately realised, in connection with restitution or recovery proceedings arising from an offender’s own dishonest conduct sits uneasily with the characterisation of that loss as extra-curial punishment, as distinct from a consequence of the financial position Mr D’Amore created for himself, and his family, by his own offending. That may be accepted. However, I consider the loss of the family home slightly removed from the other matters relied on by Mr D’Amore, and I give it weight.

Delay

165 The offending to which Mr D’Amore has pleaded guilty is now around eight years old. Mr D’Amore submitted the delay is a matter in mitigation, because of both the uncertainty of the prospect of sentencing hanging over him, and steps he has taken towards rehabilitation since the offending. He submitted he was charged just over three years ago, and the delay in his case has been at the extreme end. He relied in particular on the decision of Thomas v The Queen [2019] VSCA 223 at [66], where Ashley and Weinberg JJA said that “delay can be important in the overall sentencing synthesis” and “can allow for a significant reduction in sentence”.

166 The prosecution accepted that delay can be, and is, relevant in this case in both ways, but submitted that only some moderation is warranted. The prosecution submitted the delay must be considered in its context. It is said to fall into two categories.

167 First, it was said that there was a period of approximately four and a half years between the end of the offending and the charges being laid. The prosecution submitted this reflects the time taken for a complex regulatory investigation into the conduct of a financial services business, involving multiple entities (Berndale, BCSM and Algoplus), two offenders, numerous bank accounts across multiple jurisdictions (including Switzerland and a purported UK account), forensic accounting analysis, and the examination of numerous witnesses including company officers, auditors, and conveyancers. I accept that the complexity of an investigation is a recognised basis upon which delay prior to charge may be explained and accorded less mitigatory weight. That is, the period reflects the ordinary and unavoidable consequence of investigating serious, deliberately concealed financial misconduct, rather than unexplained or unjustified inactivity on the part of the investigating or prosecuting authorities. There is no basis to suggest otherwise.

168 Second, there is the period from charge to plea, which is approximately three years. The prosecution submitted that period is more directly relevant to the anxiety and uncertainty consideration. The prosecution accepted it is a substantial period of time.

169 In respect to each of those time periods, I note Mr D’Amore’s conduct. During the investigation, Mr D’Amore lied to ASIC in his 2020 voluntary interview. The investigation was conducted in that context. Further, in relation to the time since being charged, Mr D’Amore did not plead guilty until sometime after the charges were laid and long after Mr Kirby had pleaded guilty. That is, given that Mr D’Amore has now pleaded guilty to the offences, these matters reflect he had at least some control over the length of the period of time involved. That conduct is to be contrasted to someone who cooperated with the authorities from the outset.

170 I take into account delay on both aspects. However, the weight to be given to the issue of delay must be assessed in the above context. I have already addressed the issue of rehabilitation, which is unnecessary to repeat.

Disposition

171 As I stated in Kirby, the seriousness of offending of this nature is self-evident, as is the impact on the Berndale companies’ clients and the broader financial markets. It was ongoing conduct over the course of nearly two years. Mr D’Amore’s disregard for the regulatory obligations imposed by the Corporations Act on AFSL holders, his fiduciary obligations as a director and the interests of Berndale’s clients, was deliberate and blatant. He was the Responsible Manager under Berndale’s AFSL from 22 November 2011 and was the key person from 31 July 2012. Mr D’Amore stood at the apex of the Berndale companies’ management structure. There is only so much that regulators can do when a person in Mr D’Amore’s position knowingly chooses to authorise and provide to ASIC false statements and a forged bank statement to represent that their business is meeting its NTA requirements under its AFSL. As the prosecution submitted, it was a deliberate subversion of the audit and regulatory oversight processes that exist to protect consumers. He abused his position to benefit himself and others, at the expense of his clients.

172 For the reasons already explained, given the nature of the conduct undertaken by Mr D’Amore and the manner in which it was undertaken, general deterrence is a primary sentencing consideration. Denunciation for conduct of that nature is also significant.

173 I take into account matters put by Mr D’Amore in mitigation, as explained above. For the reasons already given, for the utilitarian aspect of the pleas of guilty, I allow a 15 percent discount for each offence. In addition, the other factors taken from the plea (the subjective factors of remorse, contrition, and the willingness to facilitate the course of justice) have been taken into account in his favour in the instinctive synthesis process. I have also taken into account the subjective features relied on, as explained above.

174 However, in the circumstances of this case, given the significance of general deterrence and denunciation, it necessarily follows less weight can be given to matters personal to Mr D’Amore. Further, in this case good character is of lesser significance as it placed Mr D’Amore in a position where he was able to commit the offences.

175 That said, while all matters are to be taken into account in both the head sentence and any non-parole period to be imposed, the weight to be attached to them can vary given the role or purpose of a non-parole period: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 (Bugmy) at 531.

176 Turning to address parity. This principle requires that like offenders should be treated in a like manner, but allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green v R [2011] HCA 49; (2011) 244 CLR 462 (Green) at [28]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (Postiglione) at 301. It requires the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and that which has been imposed on a co-offender. In doing so, the Court must have regard to differences between the person being sentenced and a co-offender which justify differences in the sentences imposed: Green at [48].

177 As already explained, Mr Kirby was sentenced for relevantly similar offences. Mr Kirby pleaded guilty, and was sentenced to 15 months’ imprisonment for charge 1, 12 months’ imprisonment for charge 2 and 15 months’ imprisonment for charge 3. The reasons given on sentencing explain the basis for the sentences imposed. As previously explained, a 25 percent discount was given in respect to each of those sentences. After taking into account matters such as accumulation/concurrency, Mr Kirby’s head sentence was 2 years and 11 months imprisonment. Mr Kirby was to be released after serving 12 months’ imprisonment on a recognizance to be of good behaviour for a period of 3 years.

178 Mr D’Amore submitted that Mr Kirby’s colourable conduct on his plea, coupled with a fair appreciation of the relative roles of Mr D’Amore and Mr Kirby, and their relative matters in mitigation, militates in favour of a more favourable disposition on sentence for Mr D’Amore. He submitted that his “frank and contrite plea” is to be contrasted with that of Mr Kirby. It is “made with full acknowledgement of the wrongdoing charged, with remorse and contrition and without any attempt to shift blame”. It was submitted Mr D’Amore should be dealt with by the Court by way of a recognizance release order, with the effect of no time actually served.

179 The prosecution also submitted the principle of parity requires that there be a differentiation in the sentences imposed on Mr D’Amore and Mr Kirby. The prosecution submitted that given the seriousness of Mr D’Amore’s offending, and based on the material before the Court, a term of actual imprisonment is required in this case, despite the matters relied upon in mitigation. An appropriate sentence would be of a length requiring the imposition of a non-parole period. That is, a sentence greater than that imposed on Mr Kirby and one for which a non-parole period is required (being an aggregate sentence exceeding three years): Crimes Act s 19AB(1).

180 As a starting point and as earlier explained, Mr D’Amore has sought to diminish the seriousness of his conduct, and deflect blame onto others for his offending. I am also satisfied that Mr D’Amore had a more senior role than Mr Kirby in the business. I do not accept Mr D’Amore’s submissions as to their relative roles. It follows that the premise to the contrary in Mr D’Amore’s submissions as to the appropriate disposition, is not established. I note that both offenders sought to minimise their culpability for their offences, albeit in different ways. Both sought to deflect blame on the other.

181 Mr D’Amore was CEO and at the apex of Berndale. He was the Responsible Manger under the AFSL and had the primary responsibility of dealing with accountants, auditors, and with ASIC. That was the context in which charge 2 was committed. I note also that Mr Kirby’s false representation offence (charge 1) involved only one act (as opposed to Mr D’Amore’s charge 2, which involved three acts).

182 Mr D’Amore’s offences involved larger amounts of funds being dishonestly transferred. In relation to charges 1 and 3, Mr D’Amore’s conduct involved the dishonest transfers of a greater overall sum of money: $435,176 for charge 1, and $436,320 for charge 3. For the corresponding offences, Mr Kirby’s dishonest transfers amounted to $165,000 (charge 2) and $349,336 (charge 3).

183 There are also relevant differences between the two offenders which should be reflected in a differentiation in sentencing. Accepting that Mr Kirby held a senior position in the business, nonetheless, Mr D’Amore’s sentences should reflect his more senior role at the apex of the Berndale group, his responsibilities in respect to being the Responsible Manger and key person under the AFSL, and that he was the dominant person in running the business.

184 In addition, Mr Kirby pleaded guilty at the committal proceedings, significantly earlier than Mr D’Amore. Mr Kirby’s sentences have been reduced by 25 percent. Mr D’Amore will receive a 15 percent discount on each offence.

185 Given the principles about consistency in sentencing in relation to federal offenders, the prosecution provided a table said to describe comparative cases. Mr D’Amore provided additional comments in respect to each of the cases raised. I have considered those cases, which are unnecessary to expressly address in these reasons. However, the prosecution acknowledged that, as in the case of Mr Kirby, previous decisions are of limited assistance in this case.

186 This Court is to impose a sentence of the severity appropriate in all the circumstances of the offence. Taking into account and weighing the relevant considerations by the process of instinctive synthesis, including the factors in s 16A(2) of the Crimes Act that are relevant and known to the Court, I impose the following: on Charge 1, 17 months imprisonment; on Charge 2, 20 months imprisonment; and on Charge 3, 20 months imprisonment. Each sentence has been reduced by 15 percent for the utilitarian basis of the guilty plea on each.

187 As in Mr Kirby’s case, each offence is different and each reflects significant criminality and different conduct. It may be accepted there is some degree of overlap, in the sense of the context and circumstances in which they were committed.

188 I do propose to order some concurrency, but to reflect the differences there also needs to be an amount of accumulation: see, for example, the oft cited Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [37]. I am mindful of the principle of totality which obliges a judge “who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”: Postiglione at 307-308, citing Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63.

189 I also note that each is a rolled-up charge which, by the nature of the concept, has an inherent element of leniency: e.g. Forrest at [257].

190 The sentence on Charge 2 is to commence after 12 months has been served in relation to Charge 1. The sentence on Charge 3 is to commence after 14 months of Charge 2 has been served. The total sentence is 3 years and 10 months.

191 Given the aggregate sentence is greater than three years, I am obliged to fix one non-parole period: s 19AB(1) of the Crimes Act.

192 The obligation in s 16A(1) of the Crimes Act applies to the determination of a non-parole period: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 (Hili) at [40]; R v Hatahet [2024] HCA 23; (2024) 282 CLR 392 at [28]. The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: Bugmy at 536 referring to Power v The Queen [1974] HCA 26;  (1974) 131 CLR 623 at 629 and Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 at 766; and see Hili at [40]. While all matters are to be taken into account in both the head sentence and any non-parole period to be imposed, the weight to be attached to them can vary given the role or purpose of a non-parole period: Bugmy at 531. The deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and non-parole period: Hili at [41], [63].

193 I impose a single non-parole period of 23 months imprisonment.

Associate:

Dated:    23 July 2026