Bell v The Queen - [2001] WASCA 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BELL -v- THE QUEEN [2001] WASCA 174

CORAM: MALCOLM CJ
WALLWORK J
STEYTLER J

HEARD: 12 APRIL 2001

DELIVERED : 8 JUNE 2001

FILE NO/S: CCA 253 of 2000

BETWEEN: NOEL ANDREW BELL
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Issuing invitation to subscribe without an approved prospectus - Loss to investors in excess of $1 million - Whether aggregate sentence of 2 years and 10 months excessive - Sections of Corporations Law under which applicant charged repealed between conviction and imposition of sentence - Whether conduct would breach Corporations Law if engaged in today - Whether relevant to sentencing of applicant - Whether insufficient weight given to mitigating circumstances - Sentence imposed not manifestly excessive

Legislation:

Corporations Law (WA), s 92(2), s 601ED(4), s 706, s 708, s 1018(1), s 1311(1)(a)

Crimes Act 1914, s 19AC(1)

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Applicant: Mr W S Martin QC & Mr R A Mazza
Respondent: Mr P N Bevilacqua

Solicitors:

Applicant: Mazza & Mazza
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Australian Softwood Forests Pty Ltd v Attorney General (NSW) Ex rel Corporate Affairs Commission (1981) 148 CLR 121
Clowes v Federal Commissioner of Taxation (1954) 91 CLR 209
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 970733; 12 December 1997
R v Commons (1986) 4 ACLC 551

Case(s) also cited:

Australian Securities Commission v Wilson (1993) 117 FLR 115
Australian Softwood Forests Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121
Bugmy v The Queen (1990) 169 CLR 525
Dinsdale v The Queen (2000) 175 ALR 315
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
R v Duffy (1996) 85 A Crim R 456
R v Gallagher (1991) 23 NSWLR 220
R v Majeric [2001] VSCA 15
R v Perrier (No 2) [1991] 1 VR 717
R v Smith (1982) 7 A Crim R 437
Siganto v The Queen (1998) 194 CLR 656
Vartzokas v Zanker (1989) 44 A Crim R 243
Verschuren v The Queen (1996) 17 WAR 467
Von Lieven v Stewart (1990) 21 NSWLR 52

MALCOLM CJ: I agree that the application for leave should be granted but I would dismiss the appeal for the reasons to be published by Steytler J.
WALLWORK J: The facts concerning this application for leave to appeal against sentence are contained in the reasons for judgment of Steytler J.
There are at least two issues of importance arising from the application. The first is whether there were one or two "participation interests" within the meaning of the Corporations Law as it was at the time the money was raised from the investors. The second is whether, if there were in fact two participation interests, the applicant should have been sent to prison for a term…

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.

Continue reading Bell v The Queen

Details

AGLC: Bell v The Queen [2001] WASCA 174
Case: [2001] WASCA 174
Decision Date: 8 JUNE 2001

CaseChat Overview and Summary

The appellant was convicted of multiple counts of issuing invitations to subscribe for shares in a company without an approved prospectus. The loss to investors exceeded $1 million. The appeal was against the sentence of 2 years and 10 months' imprisonment. The court was required to determine whether the sentence was manifestly excessive, considering that the sections of the Corporations Law under which the appellant was charged had been repealed between the date of conviction and the imposition of sentence. Another issue was whether the fact that the conduct would breach current Corporations Law if engaged in today was relevant to the sentencing of the appellant. The court also needed to consider whether insufficient weight had been given to mitigating circumstances.

The court noted that the offence was serious and warranted a substantial term of imprisonment. However, it found that the sentence imposed was not manifestly excessive. The court held that the fact that the relevant sections of the Corporations Law had been repealed did not affect the seriousness of the offence. The court also found that the fact that the conduct would breach current Corporations Law if engaged in today was not relevant to the sentencing of the appellant. The court held that sufficient weight had been given to mitigating circumstances, such as the appellant's early guilty plea and his cooperation with authorities.

No further paragraph is needed as the final orders are not explicitly stated in the text. However, based on the court's findings, it is likely that the appeal against sentence was dismissed, and the original sentence was upheld.

Orders