and Lukas Kamay v The Queen - [2015] VSCA 296

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0103
LUKAS KAMAY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ, REDLICH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2015
DATE OF JUDGMENT:	13 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 296
JUDGMENT APPEALED FROM:	[2015] VSC 86 (Hollingworth J)

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CRIMINAL LAW – Insider trading – Sentence – Seven years’ imprisonment – Largest sentence in insider trading case – Sections 1043A and 1311(1) Corporations Act – Whether sentencing judge gave too much weight to profit in determining seriousness of offending – Quality of inside information enabled large profits to be made within short period of time with low risk – Relevance of impact on market – Absence of identifiable victim – Counter parties to trading considered victims – Use of inside information damages integrity of market – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Insider trading – Sentencing – Mitigating factors – Relevance of youth of offender and previous good character and loss of profession in contemporary business world – Importance of general deterrence in white collar crimes – Hartman v DPP (Cth) [2011] NSWCCA 261, DPP (Cth) v Gregory [2011] VSCA 145, Khoo v The Queen [2013] NSWCCA 323, applied.

CRIMINAL LAW – Insider trading – Sentencing – Co-offenders – Parity – Co-offenders charged with different offences – Green v The Queen (2011) 244 CLR 462, Farrugia v The Queen [2011] VSCA 201, considered – Significant differences in roles of co-offenders.

CRIMINAL LAW – Dealing in the proceeds of crimes – Section 400.4 Criminal Code –Concealment not element of offence of money laundering – No error by sentencing judge.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C B Boyce SC with Mr A T Conley	Anthony Isaacs
For the Crown	Mr R J Bromwich SC with Mr D J Lane	Director of Public Prosecutions (Cth)

WARREN CJ

REDLICH JA
KAYE JA:

Overview

On 10 December 2014, the applicant pleaded guilty to four charges of insider trading, one charge of dealing in the proceeds of crimes being $100,000 or more and two charges of dealing in identification information using a carriage service. He was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
6	Insider trading [Corporations Act 2001 (Cth) ss 1043A and 1311(1)]	10 years and/or $765,000 fine (or three times the total value of benefits obtained) [Corporations Act 2001 (Cth) ss 1043A and 1311(1) and Schedule 3]	2 years	6 months
7	Dealing in identification information using a carriage service [Criminal Code (Cth) s 372.1A(1)]	5 years and/or $51,000 fine [Criminal Code (Cth) s 372.1A(1)]	3 months	-
8	Insider trading	10 years and/or $765,000 fine (or three times the total value of benefits obtained)	4 years	9 months
9	Insider trading	10 years and/or $765,000 fine (or three times the total value of benefits obtained)	4 years	9 months
10	Insider trading	10 years and/or $765,000 fine (or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSCA 296
Decision Date: 13 November 2015

CaseChat Overview and Summary

Lukas Kamay was convicted of insider trading and sentenced to seven years in prison, marking the largest sentence for such an offence. Kamay appealed the severity of the sentence on several grounds, including the weight given to the profit made from the offence, the mitigating factors of his youth, good character, and loss of profession, and the parity of his sentence with co-offenders. The Court of Appeal examined the sentencing principles and the specific factors influencing the sentence. The appeal court held that the sentencing judge did not err in considering the profit made from the insider trading as it reflected the seriousness of the offence and the damage caused to the integrity of the market. The court also determined that the mitigating factors, while relevant, did not warrant a significantly lower sentence given the importance of deterrence in white collar crime. Regarding parity with co-offenders, the court found that the differences in their roles justified the variance in sentences. Ultimately, the appeal was dismissed, upholding the original sentence.

Orders