NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
BRAUN v REGINA [2008] NSWCCA 269
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
No 2008/5067
HEARING DATE(S):
Wednesday 5 November 2008
JUDGMENT DATE:
19 November 2008
PARTIES:
BRAUN, Peter
v REGINA
JUDGMENT OF:
McClellan CJ at CL Hall J Harrison J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/11/0252
LOWER COURT JUDICIAL OFFICER:
Finnane DCJ
LOWER COURT DATE OF DECISION:
25 July 2008
COUNSEL:
C: W Abraham QC
A: D Robinson SC/ J Horowitz
SOLICITORS:
C: Commonwealth Director of Public Prosecutions
A: Horowitz & Bilinksy
CATCHWORDS:
CRIMINAL LAW – SENTENCING – Appeal against severity of sentence – applicant pleaded guilty to six counts contrary to s 1041G, Corporations Act 2001 (Cth) and two counts contrary to s 300(1), Crimes Act 1900 (NSW) – where both Federal and State sentencing regimes operate – where applicant did not gain a direct financial benefit from conduct – whether total sentences and non-parole period imposed were manifestly excessive – whether error in finding that there was no alternative to full-time custody – whether error in assessment of objective circumstances of the offences – whether there was a failure to take into account the applicant’s subjective circumstances – whether there was a failure to apply the principles of Pearce – as to last ground of appeal, error held in failing to consider separate sentences for each offence before turning to questions of totality – as to other grounds of appeal, gravity of offences and culpability of applicant such that full-time imprisonment only appropriate sentencing option but the effective non-parole period found to be manifestly excessive – consideration of sentencing decisions for white collar crimes contained therein
LEGISLATION CITED:
Corporations Act 2001 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
CASES CITED:
Boskovitz v The Queen [1999] NSWCCA 437
Higgins v Regina [2006] NSWCCA 38
RE v Crown [2005] NSWCCA 429
Regina v Adler [2005] NSWCSC 274; (2005) 53 ACSR 471
Regina v Boulden [2006] NSWSC 1274
Regina v Cassidy [2005] NSWSC 410
Regina v Cooper [2006] NSWSC 609; (2006) 58 ACSR 83
Regina v Corbett (1991) 52 A Crim R 112
Regina v Fodera [2007] NSWSC 1194; (2007) 65 ACSR 109
Regina v Lemene [2001] NSWCCA 5
Regina v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60
Regina v Pantano (1990) 49 A Crim R 328
Regina v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
Regina v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Regina v Williams [2005] NSWSC 315; (2005) 216 ALR 113
Regina v Zamagias [2002] NSWCCA 17
TEXTS CITED:
DECISION:
(1) Leave to appeal be granted.
(2) The appeal be upheld.
(3) That the orders of the District Court made on 25 July 2008…
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- Braun v R [2008] NSWCCA 269
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- [2008] NSWCCA 269
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CaseChat Overview and Summary
The court examined the nature of the statutory offence under the Corporations Act, the objective factors relevant to the sentencing, and the full-time custodial order made. It was noted that the Corporations Act offences aimed to protect the integrity of financial markets and impose penalties for dishonest conduct. The court found that the applicant's conduct was dishonest and amounted to a gross breach of trust, causing significant risk and loss to the investors. Despite this, the court considered the sentences imposed by the District Court to be manifestly excessive due to the failure to consider concurrent sentencing for the offences under the Corporations Act.
Ultimately, the court allowed the appeal, set aside the orders of the District Court, and imposed new sentences for the offences. The sentences included imprisonment terms for offences under the Crimes Act and the Corporations Act, with specific release dates and recognisance release orders for some of the offences. The court's decision was based on the conclusion that the original sentences were manifestly excessive due to the failure to consider concurrent sentencing.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
I will return to consider the consequence of that conclusion.The Corporation Act offences – whether manifestly excessive(1) The statutory offence The error identified above in the application of the principles enunciated in Pearce (supra) provides, as I have observed, a sufficient basis for this Court to intervene and to re-sentence the applicant. However, I will nonetheless proceed to examine whether, as alleged, the sentences imposed by the sentencing judge were, in any respect, “manifestly excessive” as contended for on behalf of the applicant. The issue of “manifestly excessive” sentences was, as earlier noted, raised in Ground 1 of the Grounds of Appeal. In the discussion below, I propose to refer to four matters. The first concerns the statutory offence. The second, the objective matters that relate to the gravity of the offences. The third, the full-time custodial order made and, fourthly, the question of whether the sentences imposed were manifestly excessive. In relation to the Corporation Act offences, it has been observed:-“Part 7.10 of the Corporations Act 2001 (Cth) is aimed at protecting the integrity of dealings in Australian primary and secondary financial markets. It does this by creating statutory liability for certain conduct in relation to financial products or services. Conduct prohibited by Pt 7.10 of the Act includes:-1.manipulating a financial market;2. trading falsely on a financial market;3.disseminating statements about the price of financial products affected by prohibited conduct;4.making false statements to induce dealings in financial products;5.improperly inducing dealings in financial products;6. engaging in dishonest conduct;7.misleading or deceptive conduct in connection with financial products or services; and8. insider trading.”The Law of Australia, TLA [4.9.2200] Part 7.10 of the Corporations Act, which incorporates s.1041G, forms part of Chapter 7 – Financial Services and Markets. In Part 7.1, s.760A sets out the objects of Chapter 7 in the following terms:-“760A Object of ChapterThe main object of this Chapter is to promote:-(a)confident and informed decision-making by consumers of financial products and services while facilitating efficiency, flexibility and innovation in the provision of those products and services; and(b)fairness, honesty and professionalism by those who provide financial services; and(c)fair, orderly and transparent markets for financial products; and(d)the reduction of systemic risk and the provision of fair and effective services by clearing and settlement facilities.” Section 1041G of the Corporations Act 2001 (Cth), accordingly, can be seen as one of several provisions in Chapter 7 directed to reinforcing the requirement for integrity in the financial services industry by imposing criminal and civil penalties for conduct which is “dishonest” as defined in the section.(2) The objective factors in this case The objective circumstances that were relevant to the exercise of the sentencing discretion in the present case were:-(1)That the total sum invested and for which the applicant was responsible was a large one amounting, in all, to $1,211,823.(2)That the relevant offences extended over a period of approximately 14 months and involved a series of dishonest actions constituting in that period a continuing line of conduct.(3)That the investors were very much dependent upon the honesty of the applicant. In relation to their respective investments, they were vulnerable in that they were susceptible to being misled by incorrect information and of being duped by dishonest conduct.(4)That the dishonest conduct of the applicant occurred in the course of a trust relationship with Fundamental’s clients investors and such conduct represented a gross breach of trust.(5)That the conduct comprised repeated deception, suppression and deliberate misleading of the investors as to the true position concerning their respective investments.(6)That the applicant’s conduct constituting the Corporation Act offences formed a continuing course of conduct that put the investors’ funds at a significant risk of loss, which loss materialised.(7)That the applicant was wholly motivated by his own interests at the expense of Fundamental’s investor clients.(8)That the investors were deceived and were thereby unable to act in their own interests.