Braun v R
[2008] NSWCCA 269
•19 November 2008
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 be set aside.
(4) That in lieu the following sentences in respect of the State offences and the Corporations Act offences be imposed:-
(a) In respect of the offence contrary to s. 300(1) of the Crimes Act 1900 occurring on or about 4 September 2006, a fixed term of imprisonment of nine months to commence on 25 July 2008 and to expire on 24 April 2009.
(b) In respect of the offence contrary to s.300(1) of the Crimes Act 1900 committed on or about 3 October 2006, a concurrent term of imprisonment of nine months to commence on 25 July 2008 and to expire on 24 April 2009.
(c) In respect of the offences contrary to s.1041G of the Corporations Act 2001, being the group of offences in sequences numbers 1, 2, 4 and 6 in the Court Attendance Notice, sentences in the following terms:-
(i) In respect of the offence in sequence number 1, a period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(ii) A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate on 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(iii) In respect of the offence in sequence number 2, a concurrent period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(iv) A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate on 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(v) In respect of the offence in sequence number 4, a concurrent period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(vi) A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate from 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(vii) In respect of the offence in sequence number 6, a concurrent period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(viii) A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate on 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(ix) In respect of the offence in sequence number 3, a concurrent term of imprisonment of one year and six months commencing on 25 September 2008 and to expire on 24 March 2010.
(x) In respect of the offence in sequence number 5, a concurrent term of imprisonment of one year and six months commencing on 25 September 2008 and to expire on 24 March 2010.
The earliest date the applicant will become eligible for release is 24 March 2010.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2008/5067
McCLELLAN CJ at CL
HALL J
HARRISON JWEDNESDAY 19 NOVEMBER 2008
PETER BRAUN v REGINA
Judgment
McCLELLAN CJ at CL: I agree with Hall J.
HALL J: The applicant seeks leave to appeal under s.5(1)(c) of the Criminal Appeal Act 1912 (NSW) in respect of sentences imposed upon him by the District Court of New South Wales on 25 July 2008.
The applicant was charged and pleaded guilty to six counts under s.1041G of the Corporations Act 2001 (Cth) as well as to two counts under s.300(1) of the Crimes Act 1900 (NSW). In other words, the applicant pleaded guilty to six Commonwealth offences and two State offences.
The sentences imposed were in the following terms:-
(1)For each of the offences under s.300(1) of the Crimes Act, a fixed sentence of nine months imprisonment, to be served concurrently, to commence 25 July 2008 (the “Crimes Act offences”).
(2)In respect of the six offences under s.1041G of the Corporations Act, a term of imprisonment for a period of three years, to be served concurrently, and to commence on 25 October 2008, the applicant to be released after two years and two months on 24 December 2010 (the “Corporations Act offences”).
The Crown submissions noted that the total effective sentence was three years and three months imprisonment, the applicant to be released on a recognisance on 24 December 2010.
At the hearing of the application for leave to appeal, Mr David Robinson SC, who appeared with Mr Jacob Horowitz of counsel, drew the Court’s attention to the fact that the way in which the sentencing judge framed the sentences for the Crimes Act offences and the Corporations Act offences left open the interpretation that the sentences imposed resulted in a total effective non-parole period of two years and five months imprisonment, this being upon the basis that the Corporation Act offences were to commence on 25 October 2008 and not 25 July 2008. The State offences were stated as commencing on 25 July 2008.
Grounds of appeal
In the Notice of Application for Leave to Appeal, filed on 8 September 2008, the applicant stated that he relied upon the following grounds of appeal:-
“1.The sentences and the non-parole period imposed upon the Applicant were manifestly excessive.
2.The sentencing judge was in error in concluding that there was no alternative to full-time custody permitted by law.
3.The sentencing judge failed to properly assess the objective circumstances of the offences.
4.The sentencing judge failed to take proper account of the applicant’s subjective circumstances.
5.The sentencing judge failed to apply Pearce v The Queen (1998) 194 CLR 610.”
The relevant provisions
Section 300(1) of the Crimes Act 1900 (NSW) is in the following terms:-
“300 Making or using false instrument
(1)A person who makes a false instrument, with the intention that he or she, or another person, will use it to induce another person:-
(a)to accept the instrument as genuine, and
(b)because of that acceptance, to do or not do some act to that other person’s or to another person’s, prejudice,
is liable to imprisonment for 10 years.”
Section 1041G of the Corporations Act 2001 (Cth) is in the following terms:-
“1041G Dishonest conduct
(1)A person must not, in the course of carrying on a financial services business in this jurisdiction, engage in dishonest conduct in relation to a financial product or financial service.
(2)In this section:-
dishonest means:-
(a)dishonest according to the standards of ordinary people; and
(b)known by the person to be dishonest according to the standards of ordinary people.”
The sentencing judge was, accordingly, required to determine the sentence to be imposed under two relevant sentencing regimes, namely, Part 1B of the Crimes Act 1914 (Cth) and the Crimes (Sentencing Procedure) Act 1999 (NSW).
General sentencing principles in relation to the s.1041G offences
The sentencing judge was required in relation to these offences to have regard to the provisions s.16A of the Crimes Act 1914 (Cth) which is in the following terms:-
“16AMatters to which court to have regard when passing sentence etc.
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
(b)other offences (if any) that are required or permitted to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;
(d)the personal circumstances of any victim of the offence;
(e)any injury, loss or damage resulting from the offence;
(f)the degree to which the person has shown contrition for the offence:
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g)if the person has pleaded guilty to the charge in respect of the offence - that fact;
(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j)the deterrent effect that any sentence or order under consideration may have on the person;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”
In general terms, the determination required of the sentencing judge, in respect of each of the Corporation Act offences charged, was to ensure, having regard to the above provisions, that the term of imprisonment reflected all of the circumstance of the offences and of the offender, including, in particular, their objective gravity and the need for general deterrence. These matters operate to confine the proper range for the exercise of the sentencing discretion: Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [65].
Facts
A Summary of Facts was tendered and marked as Exhibit A at the sentencing hearing. Attached to that document was a statement by the applicant dated 8 November 2007.
There was also in evidence an affidavit of the applicant affirmed on 11 June 2008 and he was cross-examined on that affidavit at the hearing.
The applicant is presently 31 years of age. He was born on 13 February 1977 in what was then known as Czechoslovakia and came to this country when he was about 11 years of age.
After completing his high school education, he attended university and in 1999 completed a Bachelor of Economics degree and in 2002 received a Master of Economics (Economics and Finance).
He worked with a well-known company in the financial industry between about June 2000 and July 2002. On the latter date, his employer company relocated to Hong Kong.
In May 2004, he was introduced by a former school friend, a Mr Gara, to a Mr Gregory Nathan. Mr Nathan introduced himself as a director of a company, Fundamental Group Pty Limited (“Fundamental”).
In due course, Mr Nathan told him that he was looking for “a share trader”. The applicant told him that he was interested in moving into the share trading area.
In May 2004, he commenced working with Fundamental on a full-time basis. He was paid on a commission basis which the applicant estimated on average earned him approximately $20,000 per year. He said that, given his low income, he was required to live on credit.
On commencing work with Fundamental, Mr Gara gave him a list of clients.
The applicant stated that, despite a promise made by Mr Nathan at a meeting in May 2004, he was not provided with any training at Fundamental.
In about May 2004, Fundamental developed the Individually Managed Account (“IMA”) as a retail product for investors. The purpose of the IMA was to enable an investor to provide funds to Fundamental which would be used to invest and trade in a portfolio of shares specifically tailored to that investor’s needs. The IMA was to be managed by a share trader and the applicant undertook this role between 2004 and October 2006.
The individual investors in the IMA were located by Mr Gara.
Exhibit A lists the names of the investors and the amounts invested by each. Omitting the names of the individual investors and substituting numbers for the purposes of identification, I set out the particulars in Exhibit A as follows:-
“Investor 1 invested $150,000 on 25 August 2004
Investor 2invested $155,000 on 30 August 2004 and $100,000 on 24 January 2005
Investor 3invested $118,020 on 15 October 2004
Investor 4invested $60,000 on 12 November 2004
Investor 5invested $250,000 on 18 January 2005 and $98,000 on 25 May 2005
Investor 6invested $150,000 on 8 February 2005 and $39,700 on 18 March 2005
Investors 7invested $91,103.34 on 5 August 2005.” - s.300(1) Crimes Act 1900 offences)
The evidence, accordingly, indicates that a total of $1,211,823.34 was invested in the IMA by the above investors in the period 25 August 2004 to 5 August 2005.
The applicant, in his capacity as a share trader, managed the relevant accounts on behalf of the investors.
As adverted to above, he was paid solely on commission, being a percentage of the initial investment made in the IMA. He was also to receive a commission if his trading significantly outperformed the ASX 300.
In order to effect the trades, the applicant would make contact with Craig Maltz, broker at Tricom Equities Limited who would undertake them on the applicant’s instructions through Tricom Equities.
In the period between June 2004 and October 2006, the applicant performed hundreds of trades. However, the intention of outperforming the AXS 300 was not realised and the IMA began to lose money. It is said that this trend continued through to October 2006.
In relation to the six counts of dishonest conduct charged under s.1041G of the Corporations Act the following particular facts were established. The applicant was required to report to the investors about the trades he had performed for them and how their investment was performing in general. He did this by providing to the individual investors “Individually Managed Account Portfolio Valuation Reports (“Portfolio Valuation Reports”).
In the period between July 2004 and October 2006, he sent many such reports to them. He also sent reports to Mr Gara knowing that they would be sent on to investors. False reports were received by each of the investors identified as Investor 1 to Investor 6 above.
The stated amounts in each Portfolio Valuation Report were false in that they overstated the value of the investments. The securities listed and their quantities were also false. In his statement of 8 November, being part of Exhibit A, the applicant stated:-
“20(d)I knew, at the time of sending the Portfolio Valuation Reports to each investor, that the stated value of the investment was false;
(e)I knew that the securities listed, as being held in the investor’s name, as at the date of each Portfolio Valuation Report, and the quantity of those securities was false;
(f)I knew that by sending the Portfolio Valuation Reports, that contained the false information to the investor I was acting dishonestly.”
In his affidavit affirmed on 11 June 2008, the applicant stated:-
“39.I relied heavily upon Mr Maltz to guide me in stock selections, although I appreciate that the decision to invest in a particular stock was ultimately my own. My reliance on Mr Maltz was due to him holding himself out as being experienced, and secondly due to me being new to trading and not being mentored by anyone at Fundamental.
40.With hindsight, I regard Mr Maltz to have encouraged me to trade excessively and I suspect that this may have been due to the commissions that Mr Maltz and Tricom earned on the trades that I did. I estimate the total trading fees generated from me during my time at Fundamental exceeded $400,000.”
In relation to the false statements made to the investors, the applicant stated in his affidavit:-
“48.As stated above, I have pleaded guilty to providing false statements to investors of Fundamental, which I appreciate involves conducting myself in a dishonest manner.
49.Essentially, I gave investors information that would have given them the impression that their investments were doing much better than they in fact were doing.
50.I did this out of a sense of fearing failure.
51.The situation that I found myself in at Fundamental was that I had been given the ability to trade in other people’s money and that no-one kept any checks on me. Although I traded poorly, the superiors at the organisation did not call me in and provide an appraisal of my performance or otherwise seek to uncover the errors with my trading strategies.
52.From a personal perspective, and given my ambitions to succeed in a financial career, I wanted to be successful at Fundamental. To me, my success would be measured by me providing a good return on the funds invested with Fundamental.
53.When I started to lose money for my investors, I panicked. I did not know what to do. I did not want to tell the investors that I had done badly. Further, I wanted to be able to right the situation. I was convinced in my own mind that if I could have more time I could turn things around.
54.It was against this background that I committed my offences. I should have just told the investors that I had lost part of their funds. However, my own anxiety at failing my clients drove me not to do this. I did not engage in the conduct the subject of these proceedings directly for the purposes of my own financial gain, rather, I was giving myself time to succeed at what I was trying to do – recoup the losses.”
In cross-examination, the applicant stated that he approached his director once or twice concerning share values and at least on one of those occasions, he made him aware that there had been “one big share loss”.
The cross-examination included the following:-
“Q. Do you agree that shortly after you commenced the share trading on behalf of the clients the subject of these charges, your share trading for those clients was producing losses?
A. Yes. Initially when I started this, the stocks I selected started to lose their values over a period of time, yes.…
Q. That was one of the reasons why you created the false documents, if I can put it that way, so that the clients would not also become aware of the fact that they were losing in their investments?
A. YesQ. You accept, don’t you, that in your role you were in a position where you were required to put your clients’ interests ahead of your own in terms of the share trades that you were going to carry out?
A. Yes, in my role the client came first, yes.Q. But that’s not what ultimately happened here, is it?
A. My interests were first.Q. You sought to disguise the fact that your share trades on behalf of the clients were making a loss?
A. Yes.Q. And you put your interest in hoping to make a profit in the long run ahead of the clients’ immediate interests to make an informed choice?
A. Yes, the clients were losing the monies in the share portfolio, so, yes, I was hoping that I could make the money back.”Findings
The written submissions for the applicant set out the facts as found by the sentencing judge. The Crown accepted that they accurately record the relevant findings and accordingly, I reproduce paragraph [7] of those submissions:-
7.For present purposes, the sentencing judge’s findings were as follows:-
(a)The conduct under s1041G was the composing and sending of false reports to each of 6 investors in respect of their share trading position. [Remarks, p.3]
(b)The conduct under s300(1) was the making and sending of two groups of false instruments purporting to evidence transactions undertaken on behalf of a certain investor [Investors 7]. [Remarks, p.4]
(c)The Applicant held two university degrees [Remarks, p.6.5], but had previously not worked in a trading position. [Remarks, p.6.8]
(d)The Applicant was given no training. He relied upon others, such as Mr Maltz at Tricom Equities, to guide him in stock selections. [Remarks, p.7.2]
(e)The Applicant had no real supervision in his job and did not tell any of his supervisors that the share trading was going badly. [Remarks, p.5.5]
(f)The Applicant did not tell the directors of his employer that the shares he was trading in were falling in value. [Remarks, p.5.6]
(g)The amount invested by the individuals named in all the counts totalled $1,211,823.34. [Remarks, p.2.3] These funds were kept in a single account which the Applicant used to trade shares. [Remarks, pp.2.2 & 3.2]
(h)The Applicant’s conduct caused persons to lose very large sums of money. [Remarks, p.9.5]
(The sentencing judge did not set out the sum lost. From Exhibit A in the sentencing proceedings, his Honour may have had in mind the figure of $838,270, although this figure requires refinement (discussed further below). From other parts of the Remarks, it appears that the sentencing judge accurately identified the relevant loss as the loss of opportunity for investors concerned by the actual trading results to withdraw from the investment in a timely and informed way and thereby limit the losses incurred. [Remarks, p.8.7])
(i)The sentencing judge found that [Investors 7] money was lost. The finding was that ‘… $100,000 in each case … was lost’ [Remarks, p.11.2]
(j)The dishonest conduct was carried on over a two year period. [Remarks, p.8.6]
(k)The dishonest conduct was motivated by a perceived need to conceal trading losses after those losses had been incurred. [Remarks, pp.7.4 & 5.6]
(l)Each of the s300(1) offences was very serious and involved very careful preparation. [Remarks, p.11.2]
(m)The Applicant was paid solely by commission on initial investment and then further commission if he outperformed the ASX 3000. [Remarks, p.2.8] He earned about $20,000 a year and lived off credit cards. [Remarks, p.7.1]
(n)The Applicant did not make anything personally from his dishonesty, although he did intend to get commissions if he was successful. [Remarks, p.5.9]
(o)The Applicant assisted ASIC in its enquiries and set out his dishonesty in detail. [Remarks, p.4.5]
(p)The Applicant pleaded guilty at the earliest opportunity. [Remarks, p.11.1]
(q)The Applicant had no criminal records. [Remarks, p.8.9]
(r)The Applicant was remorseful. [Remarks, p.8.9]
(s)There was considerable reason to suppose that the Applicant will not involve himself in this type of thing again. [Remarks, p.8.9]
(t)The Applicant was of previous good character. [Remarks, p.9.1]
(u)The Applicant was young [aged 28] and foolish at the time of the offences. [Remarks, p.8.6]
(v)The Applicant as a result of his work was unable to sleep and suffered from a condition known as psoriasis. [Remarks, p.7.6]”
In this appeal, it is necessary to consider, firstly, whether there are any errors of fact or principle that could vitiate the exercise of the sentencing judge’s discretion. Secondly, whether the sentencing judge was correct in concluding that the only appropriate sentence was a full-time term of imprisonment. Thirdly, whether, if a full-time term of imprisonment was appropriate, whether the sentence imposed lies within the range of a sound discretionary judgment. In this latter respect, the question is whether or not the sentence was manifestly excessive as contended by Mr Robinson SC on behalf of the applicant.
Submissions for the applicant
The written submissions on behalf of the applicant dated 8 September 2008 address the following grounds of appeal:-
Ground 1: The sentences and the non-parole period imposed upon the applicant were manifestly excessive
It was contended in the written submissions for the applicant that, what was said to have been an effective total sentence of three years and three months with a minimum term to be served of two years and five months, is outside the range for the offences in question. Particular reliance was placed upon the fact that the Corporations Act offences did not involve a finding that the dishonest conduct had been undertaken for personal financial gain or for the gain of an entity associated with the applicant. In this respect, it was emphasised that the case was not one involving larceny, misappropriation or false statements made “… to cover up otherwise dishonest activity” (paragraph [10]). It was contended that the activity covered up was the applicant’s poor performance in trading shares, this being an activity which had been undertaken honestly.
The question raised by Ground 1 will be separately considered later in this judgment. At this stage, it is sufficient to state that I do not accept this submission as accurately characterising the applicant’s conduct. The suppression of the true position concerning the investors’ share portfolio and the issue of false Portfolio Valuation Reports to them hid and misled the client investors from knowing the true position concerning their investments. I do not accept that the relevant “activity” of the applicant was merely to disguise or cover up his “poor performance in trading shares”. I will return to the dishonest nature of the applicant’s conduct below.
Ground 2: The sentencing judge was in error in concluding that there was no alternative to full-time custody permitted by law
In the written submissions, attention was given to the Remarks on Sentence at pp.10 to 11.1. The relevant passages at those pages contain the sentencing judge’s observation that s.17A of the Crimes Act 1914 (Cth) required him to refrain from imposing a sentence of imprisonment unless there was no other course available. His Honour there stated his belief that in the circumstances there was no other course available and that this was in accordance with what had been stated by “… the higher courts in this State …”.
The sentencing judge also stated:-
“… however, the deliberateness of these offences, even taking into account that he co-operated with the authorities and pleaded guilty at the earliest opportunity, leaves me no other options.”
It was contended on behalf of the applicant that the sentencing judge’s conclusion in this respect was erroneous and that his Honour failed to refer to any authority to support his conclusion.
It was submitted that his Honour’s remarks at p.10 of the Remarks on Sentence, in which there was reference made to sentencing decisions concerning insider trader offenders, to offenders who had defrauded companies and to offenders who had been in dereliction of their duties as directors, suggested that the sentencing judge had in mind cases such as Regina v Adler [2005] NSWCSC 274; (2005) 53 ACSR 471; Regina v Williams [2005] NSWSC 315; (2005) 216 ALR 113; Regina v Cooper [2006] NSWSC 609; (2006) 58 ACSR 83; Regina v Fodera [2007] NSWSC 1194; (2007) 65 ACSR 109; Regina v Cassidy [2005] NSWSC 410 and Regina v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284. I will deal with specific authorities of this Court in the later discussion in this judgment.
It was further contended that the cases relied upon by the Crown before the sentencing judge all involved far more serious offences than those committed by the applicant. In this respect, it was stated:-
“20.The common theme running through all of the above cases relied upon by the Crown (as specified in paragraph 19) is the misappropriation of substantial sums of money. As the instant case ‘is not a case of misappropriation’ (Remarks, p.9.5), the above cases could not stand as authority for the proposition espoused by the sentencing judge that the law did not permit him to impose anything less than a sentence of full-time custody on the Applicant.”
In the Crown’s written submissions (paragraph [14]), it was stated that although this case was not one involving misappropriation, the applicant nonetheless stood to gain in other respects including:-
(1)His reputation – that the conduct created the impression that he was successful in his chosen profession and enabled him to continue working as a share trader.
(2)Enabled him to continue to trade in an attempt to recoup the money lost and make gains which would ultimately result in a commission to him.
The Crown contended (paragraph [23] of the written submissions) that the authorities that consider the principles applicable to sentencing offenders for white collar crimes where a position of trust has been abused were the authorities cited by the Crown to the sentencing judge. The submission was that such authorities may make it clear, in the absence of exceptional features, that ordinarily such offending calls for full-time custodial imprisonment to be imposed in cases of a single offence. In this case, the Crown argued there was nothing exceptional.
The Crown also contended that the submissions for the applicant ignored “the gravamen and purpose of these offence provisions”. In that respect, it was contended that the offence provisions “… are targeted at ensuring that persons in the position of the Applicant act honestly in carrying on their business. That applies whether or not the person gained financially from the conduct. The clients are entitled to rely on that honesty. They are dependent on it. As demonstrated here, the consequences can be devastating” (written submissions, paragraph [16]).
It is clear from the Remarks on Sentence that the sentencing judge specifically considered the issue as to whether there was available a sentencing option other than full-time imprisonment. I consider that in concluding that the offences charged required a full-time custodial sentence and that no other sentencing option was available in the circumstances of the case, the sentencing judge did not fall into error. The basis for my conclusion in that respect is set out later in this judgment (paragraphs [80] to [86]).
Ground 3: The sentencing judge failed to properly assess the objective circumstances of the offences
It was submitted on behalf of the applicant that there were a number of discrete errors in assessing the objective circumstances of the case. These may be summarised as follows:-
(1)That the sentencing judge erred when he said the offences occurred over a two year period when, in fact, they occurred over a 14 month period between 28 July 2005 and 6 October 2006. I do not consider that it has been demonstrated that any discrepancy in this respect had any relevant effect on the sentences imposed.
(2)In relation to the statement by the sentencing judge that the applicant did not tell any of his superiors about the poor share trading performance, it was contended that the reference to “supervisors” and to “directors of the company” overlooked the fact that the organisation was not a large one and that the applicant only dealt with one person, Gregory Nathan. It was contended that these statements by the sentencing judge indicated that he had formed the view that the applicant misconducted himself by keeping his employer in the dark regarding his share trading losses. However, it was stated that there was other evidence that Mr Nathan received a copy of each trade by email and that the operation of the nominee account required his signature and approval. Additionally, reliance was placed upon the applicant’s evidence that he would send a copy by email to the director on each trade. I do not consider that this matter in any way undermines the dishonesty repeatedly perpetuated by the applicant.
(3)That the sentencing judge incorrectly concluded that the investors concerned in the offences under s.300(1) (Investors 7 referred to in paragraph [38]) had suffered a loss of their money. The submission was that there was no evidence that those persons lost any money, let alone “$100,000 in each case”, it being observed that they together had only invested $91,103.34. I will return to this aspect below.
(4)That the sentencing judge did not find, but should have found, that the entire deficit of $838,270 set out in Exhibit A did not arise as a direct result of any dishonest conduct by the applicant but rather as a result of his unsuccessful share trading combined with associated brokerage commissions and that such commissions were of the order of $400,000 or more. The evidence on these matters was before the sentencing judge and, in light of the submissions made to him I do not consider that there is any reasonable possibility that his Honour was unaware of them.
(5)That the sentencing judge failed to consider the significance of the compensation scheme set up under s.917B and s.885C of the Corporations Act, that being an integral part of the licensing scheme. The submission was qualified by the observation that it was not suggested that the availability of the compensation scheme directly affected the culpability of the applicant but that, without further evidence, his Honour could not have said, as he did, that “(t)he consequences for the investors really has been quite disastrous” (Remarks on Sentence, p.8.5). The evidence established that substantial losses resulted from the applicant’s conduct. I do not consider the matter raised could, in any way, diminish the level of culpability that was determined by his Honour.
In the Crown’s written submissions, it was contended that there had been a proper assessment of the objective circumstances of the offences. In particular, regard had been had to the length of the offending, the specific nature of the applicant’s role, his control of the share trading and reporting, the planned and organised deception and ultimately what is termed the significant loss suffered by the investors.
It was submitted that the learned judge correctly found that the applicant had not informed his supervisors or the directors that the shares he was trading were falling in value. In that respect, the Crown relied upon the evidence of the applicant in cross-examination.
It was further contended that the sentencing judge had been correct in his observation that the consequences of the applicant’s conduct to the investors had “really been quite disastrous”.
I do not consider that material errors as claimed in paragraphs [52](1), (2), (4) and (5) has been established. The objective circumstances of the offences are set out and discussed in paragraphs [75] to [78] inclusive. They were matters identified by the sentencing judge and no failure has been demonstrated in his Honour’s assessment of them.
Ground 4: The sentencing judge failed to take proper account of the applicant’s subjective circumstances
The submissions for the applicant drew attention to the fact that the applicant had no prior offences and was a person of good character and accepted responsibility for his actions and had expressed remorse.
Reference was also made in this context to the sentencing judge’s remarks as to the applicant’s motivation and to his dishonesty (Remarks on Sentence, p.7.4). However, criticism was directed to the fact that the findings made as to the motivations for the dishonest “… does not equate to the failings of others who had the benefit of decades of business experience and an extensive network of potential support around them” (Applicant’s written submissions, paragraph [37]).
As to the subjective factors, the Crown referred to what it contended was the attempt by the applicant to minimise the offending on the basis that he was 28 years of age at the time of the offences and did not have substantial business experience or an extensive network supporting him. This, it was contended, ignored the nature of the offending and the position of trust which the applicant held.
Raising another basis of alleged error, the applicant argued that the sentencing judge gave no explicit discount based on the early plea of guilty in accordance with Regina v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.
The Crown’s contention was that the sentencing judge was not required to explicitly quantify the discount for the plea of guilty: Regina v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60; RE v Crown [2005] NSWCCA 429. The Crown, accordingly, contended that the failure to do so was not an error of law and, furthermore, it could not be inferred that the plea of guilty had not appropriately been taken into account. In this respect, the Crown pointed to observations made in the course of giving reasons which indicated that the sentencing judge was conscious of the fact that the applicant had “… pleaded guilty at the earliest opportunity …”. Further, it was said in submissions, that the sentencing judge was taken to the appropriate authorities.
I identify the relevant subjective circumstances in paragraph [114] below. His Honour identified each of these circumstances in his remarks on sentence and I do not consider that error has been established in respect of the assessment made of them.
Ground 5: The sentencing judge failed to apply Pearce v The Queen (1998) 194 CLR 610
His Honour referred to the two sentencing regimes under which he was proceeding and to the principles enunciated in Pearce (supra) in the context of the imposition of sentences for each of the six Corporations Act offences and the appropriate sentences to be imposed in respect of the two Crimes Act offences.
A reading of the remarks on sentence reveals that the approach taken by his Honour involved the following elements:-
(1)A determination by him that the two Crimes Act offences should attract fixed concurrent sentences of nine months imprisonment to commence on 25 July 2008 and to expire on 24 September 2009.
(2)That the sentences to be imposed in respect of the Corporations Act offences were to be partly cumulative, the term of imprisonment to commence on 25 October 2008 and to expire on 24 October 2011.
(3)That there was to be a “non-parole period” of two years and two months to commence on 25 July 2008 and to expire on 24 December 2010. (This third remark, understandably, gave rise to confusion. A non-parole period of two years and two months commencing on 25 July 2008 would expire on 24 September 2010. A non-parole period of two years and five months, however, if commencing on 25 July 2008 would expire on 24 December 2010.)
The remarks on sentence make it clear that the sentencing judge had well in mind the relative seriousness between the State and Federal offences and that distinction is reflected in the sentences imposed. It is equally clear that his Honour was mindful of the fact that he was required to impose a sentence for each individual offence and as well that he was required to apply the principle of totality. I do not consider that it is correct to say that his Honour only had in mind the total effective sentence to be imposed, an approach the High Court noted in Pearce (supra) as one likely to mask error (at p.624).
In relation to sentencing in respect of the Corporations Act offences, his Honour stated:-
“If I, for example, impose a sentence of six months imprisonment on each and cumulated each that would result in a sentence of three years and six months [sic]. But to say that each of these offences warranted only a six month period of imprisonment would seem to me to undervalue the seriousness of the offence. At the same time I do not think that any greater overall period for those six offences should be imposed than three years. Therefore, I have decided that in relation to those matters I will impose a sentence of three years imprisonment in relation to each of those six offences but make those sentences concurrent, because the overall period that he should serve for that should be no longer than three years.”
Although his Honour identified the principles to be applied, including in particular, those in accordance with Pearce (supra), I accept, as was submitted by Mr Robinson for the applicant, that his Honour did not, in fact, apply the principle by determining “… an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as, of course, questions of totality”: Pearce (supra) at 624. Whilst his Honour did, of course, consider and apply principles relating to accumulation and concurrence and of totality, he was required to determine the sentence for each of the six Corporations Act offences.
The failure to determining a sentence in respect of each offence in accordance with Pearce (supra) constitutes an error entitling this Court to intervene: Regina v Lemene [2001] NSWCCA 5.
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; and
8. 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 Chapter
The 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.
The matters referred to in the preceding paragraph indicate, in my opinion, that the objective criminality involved in the Corporation Act offences was at a high level. Accordingly, they must be considered to be serious offences. The maximum custodial penalty of five years for an offence under s.1041G is some reflection of the intention of Parliament that offences of this kind are to be so regarded. The circumstances pertaining to the Corporations Act offences, in my opinion, establish a substantial degree of culpability in the applicant.
It is true, and I take account of the fact that the applicant was not a senior executive or an employee exercising managerial control. However, in the context of a financial services business dealing directly with members of the public who necessarily place their faith and trust in the officers and employees of such a business, the risk to investors resulting from a breach of trust will usually be equally significant, whether or not the dishonesty is that of a senior executive or that or a subordinate employee. Investors have limited or, in many cases, no opportunity of verifying the truth or accuracy of information provided by those in the business of providing financial services. The vice in the present case was that the false Portfolio Valuation Reports were employed as instruments of deception with the result that the investors in question were not informed of the true facts and were misled and were thereby deprived of the opportunity of protecting their respective financial interests.
In the history set out in the pre-sentence report dated 12 June 2008, there is reference to the applicant having highlighted that his relationships with his work supervisor and another colleague were said to be instrumental in his commission of the offences. The applicant stated that he had repeatedly made poor trading decisions based on the advice of another employee, the applicant trusting that employee owing to their past friendship. He further stated that his trading decisions were not being monitored by his supervisor as they should have been and, accordingly, his actions remained unchecked. The report (p.3) records:-
“… Mr Braun minimised his culpability for the offences by seeking to blame his supervisor, the culture of the organisation, and his own lack of experience for his actions.”
In Regina v Pantano (1990) 49 A Crim R 328, Smart J at 339 (dissenting, but whose general observation on the position of subordinate employees was not material to the result) stated:-
“Dishonesty by those in subordinate positions must be discouraged and the cases stress that the element of deterrence is an important one both for the individual and others who might be tempted to offend. The task is to strike the correct balance between the need for vindication of the criminal law where a position of trust has been abused and the subjective requirements of the accused …”
(3) Whether full-time imprisonment appropriate
On the question as to whether, in the circumstances of the case, there were alternatives to full-time imprisonment available to the sentencing judge (and on any re-sentencing by this Court), there are four matters to be considered: the nature and number of the offences, the objective gravity of those offences, the importance of general deterrence in sentencing for white-collar crimes and the applicant’s subjective circumstances.
On the level of culpability in relation to the Corporations Act offences, the evidence disclosed a deliberate, co-ordinated and recurring course of deception. Whilst the gravity of the offences, as earlier stated, was high, I do not consider that the offences are properly to be classed as the worst type of case. However, the Corporations Act offences in this case do exhibit features that are associated with that worst category. The fact that there was no direct financial benefit, as in cases of misappropriation, is not, in my opinion, to be given the significance contended for in the submissions on behalf of the applicant. The applicant’s non-disclosure by suppression of the true facts and his deception in falsifying facts in the Portfolio Valuation Reports constituted dishonest conduct that produced significant losses to the individual investors.
Reference has been made to a number of sentencing decisions involving white-collar crime including Adler (supra); Boulden (supra); Pantano (supra) and Rivkin (supra) amongst others. I have also had regard to the decision of this Court in Boskovitz v The Queen [1999] NSWCCA 437 (Wood CJ at CL, Hidden J and Smart AJ).
At pp.11 to 12 of the remarks on sentence, the sentencing judge discussed the comparative seriousness of the Corporations Act offences and the two Crimes Act offences, holding, as I have earlier noted, that the former were the more serious offences.
On the question of general deterrence, Wood J (as his Honour then was) observed in Pantano (supra) at p.330:-
“As was observed in McKechnie (unreported, Court of Criminal Appeal, NSW, 1 October 1987), those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences: Glenister [1980] 2 NSWLR 597; (1980) 3 A Crim R 210.”
The real bite of general deterrence, it has been observed, takes hold only when an actual custodial sentence is imposed: Regina v Boulden [2006] NSWSC 1274 per Whealy J at [51]. In Regina v Zamagias [2002] NSWCCA 17, Howie J at [29] to [32] observed that the question as to whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence or offences committed, the objective seriousness of the criminality involved, the need for general and specific deterrence and the subjective circumstances of the offender.
I confirm the opinion I have earlier expressed to the effect that the matters identified in paragraphs [75] to [81] support the conclusion reached by the sentencing judge, and which should be accepted for the purposes of re-sentencing, namely, that a full-time term of imprisonment for the offences was the only appropriate sentencing option available in this case.
(4) Were the sentences manifestly excessive?
At the request of the presiding judge, McClellan CJ at CL, the Crown was asked to provide reference to all Commonwealth prosecutions under s.1041G and, in particular, to any sentencing decisions concerning that provision. The Commonwealth Director of Public Prosecutions, by letter dated 6 November 2008, made available to the Court the results of an internal database search. The results in table form set out particulars in relation to prosecutions that have been dealt with in the District Court of New South Wales, the County Court of Melbourne and to the decision of this Court in Higgins v Regina [2006] NSWCCA 38.
So far as the decisions of the lower courts are concerned, the Crown referred to the decision of this Court in Rivkin (supra) at [415] to [416].
I am of the opinion that the sentence imposed by the sentencing judge in Higgins (supra) (the appeal against sentence being dismissed) of a sentence of two years’ imprisonment in respect of three offences under s.1041G and the minimum sentence imposed of two years is the only authority that affords any possible guidance for the purposes of the present case.
It is clear that, by reason of the fact that the offence created by that section is materially different from other white collar offences, appellate decisions on other such offences in relation to the latter are of limited assistance.
However, a review of such decisions can at least provide a background for a consideration of the s.1041G sentences that were imposed in the present case.
The relevant case law includes cases that involved dishonest conduct by the making of misleading statements to others. In a number there was no financial benefit to the offender. In Boskovitz (supra), the appellant appealed her conviction by a jury of three counts under s.178BB of the Crimes Act 1900, namely, that with intent to obtain a financial advantage she made a statement which was false in a material particular and which she knew to be false.
The appellant was a director and an experienced senior executive of the company and of related companies and she knew the state of the finances of those companies. However, she did not determine the strategies of them and the directing force was a Mr Goldberg who was described as the corporate entrepreneur. The appellant implemented his strategies and directions and those of directors and executives senior to her.
In relation the severity appeal, it was noted that each of the offences arose out of the appellant sending certain accounts to banks and making oral and written statements as to those accounts. Credit facilities arranged by her involved large sums of money. She was not acting to secure financial advantage for herself but rather for the companies under Mr Goldberg’s control. She was a salaried employee.
Smart AJ at [133] observed that the appellant had an understanding of her duties and obligations which was seriously deficient. She lacked honesty and failed to tell the true story to the banks. It was observed that she was prepared to deceive them and she did so.
The appellant had no previous convictions. Her remuneration was modest, having a taxable income in the relevant year of $64,777. She did not receive generous bonuses, shares or options. Her remuneration was found not to match her responsibilities.
It was argued on appeal that the sentencing judge had failed adequately to take into account that there was no evidence of any advantage, financial or otherwise, which was received by the appellant as a result of the impugned false statements.
Smart AJ observed at [141] that it was not an ingredient of the offence that someone had suffered financial loss or received a personal benefit. It was, however, reasonable to conclude that loss was probably suffered as at least by one bank advanced $10 million.
It was clear that the appellant had carried out the principal director’s instructions to maintain credit facilities. On appeal, it was satisfied that the appellant had been “swept along by a dynamic entrepreneur with a dominating personality …”. At [153], his Honour observed:-
“I am persuaded that the sentences do not maintain the right balance between general deterrence and the other features of the case. To reflect the gravity of the offences which are a little below the worst type of cases, a concurrent sentence of 4 years should be imposed on each count with a minimum term of 2 years 3 months. There are special circumstances. These include the appellant’s previous good character, the unlikelihood of further offences and this being the appellant’s first gaol sentence.”
Their Honours, Wood CJ at CL and Hidden J concurred.
In Adler (supra), the offender pleaded guilty to four counts, two of which involved disseminating information knowing it was false in a material particular and which was likely to induce the purchase by other persons of shares in HIH Insurance Limited in contravention of s.999 (repealed) of the Corporations Act 2001 (Cth).
Count 1 alleged that the information disseminated was false in a material particular and it was held to be likely to induce the purchase by other persons of shares in HIH Limited, contrary to the above provision.
Count 2 involved obtaining money by false or misleading statements contrary to s.178BB of the Crimes Act 1914 (Cth).
In relation to Count 1, the offender disseminated information which he knew to be false, namely, that he had purchased shares in HIH with his own money which information was said to be likely to induce other persons to purchase shares in that company. The sentencing judge (Dunford J) observed that, not only were the statements likely to induce other persons to purchase shares in HIH, but that the offender’s intention was to cause a rise in the share price, as in fact it did.
The offender stood to benefit from a rise in the share price in two ways. First, successful trading would enable him to demonstrate, inter alia, to the Board of HIH that he could manage the company’s investments better than the current team and, secondly, it would increase the value of the shares in HIH held by him. At least in the second of these two matters, the potential personal benefits distinguish the case from the present case.
On each of Counts 1 and 2, the offender was sentenced to a term of imprisonment for two years and six months, the sentences to be concurrent with each other.
In Boulden (supra), the offender pleaded guilty to one count of being privy to the fraudulent altering of the books of a company contrary to s.590(1)(c)(iii) of the Corporations Act. The maximum penalty for the offence was a penalty of two years’ imprisonment.
The offender had become the Financial Controller of the Corporate and Professional Insurance Division of FAI General Insurance Company Limited. The performance of the insurance operations of the FAI Group steadily deteriorated over a particular six month period. The sentencing judge (Whealy J), stated that the objective criminality involved in the offence was at not an insignificant level, the offender holding a responsible middle management position. In that position, he had a direct capacity to alter the recorded estimates. Although the offender did not stand to gain personally in a financial manner from the creation of the fraudulent document, his moral culpability lay in his inability to refuse to be the architect of the fraudulent alteration.
The offender was 42 years of age at the date of sentence and had no prior convictions.
Whealy J referred to the importance of the element of general deterrence in white collar crimes, especially crimes such as that committed by the offender “… because of the need to mark out to employees of companies who hold office at the level of seniority of the offender that they have a social and moral obligation, as well as a statutory duty, to act honestly and responsibly. An important reason why this is so relates to the oft- remarked difficulty in detecting and investigating white-collar crime” (paragraph [43]).
In that case, having regard in particular to the offender’s strong subjective case, whilst determining that no sentence other than imprisonment was appropriate, the offender was sentenced to a term of 12 months, the sentence to be served by way of period detention. In the course of his remarks on sentence, Whealy J adverted to the circumstance that the offender’s criminal actions were taken at the prompting, invitation or direction of others more senior in the organisation.
In Regina v Corbett (1991) 52 A Crim R 112 at 117, the Court (Gleeson CJ, Priestley JA and Mathews J) stated:-
“… once it has been decided to inflict a significant gaol term, it is not likely to be useful, in fixing its precise length, to increase it by refusing to give due weight to factors such as a plea of guilty, previous good record, previous positive contribution to the community, real prospects of rehabilitation; the impact upon a prisoner’s family and the heavy weight of punishment inevitably involved in the loss of professional possession and livelihood. These matters should be given real weight, and it is only in the sense that the need for general deterrence will not normally allow them to reduce the sentence below a significant period of incarceration that it is right to speak of giving ‘the greatest weight to the element of general deterrence.’”
As was observed by this Court in Boskovitz (supra) at [146], Corbett (supra) highlights the need for balance when dealing with general deterrence and that other matters favourable to an offender should not be ignored (at [146]).
In determining the appropriate length of the custodial term in this case, the applicant was entitled to a discount for his early plea of guilty. Additionally, the relevant subjective circumstances include:-
(1)The applicant’s recorded statement of intention that he did not intend to return to the financial industry.
(2)Character references in his favour from people in business who had known and who spoke well of him.
(3)The finding made that there was some “considerable reason to suppose that he will not involve himself in this type of conduct in the future”.
(4)His full co-operation with ASIC investigators.
(5)The fact that he has no previous convictions and is otherwise a person of good character.
The error in sentencing referred to above means that it is open to this Court to intervene and impose lesser sentences if considered that such lesser sentences are warranted: Criminal Appeal Act 1912, s.6(3).
In the event of re-sentencing, the applicant read his affidavit of 2 November 2008. The applicant suffers from a skin condition, psoriasis.
The applicant has had medical treatment, but arrangements have not to date been put in place for him to receive required treatment, being UV light treatment for the relief of pain under the supervision of the dermatologist. The condition from which he suffers, on the evidence, is an extreme skin problem and I accept that the deterioration during his period of custody has reached the point where medical treatment, which has not been available to him, will be required. Accordingly, his medical condition, in this respect, constitutes a post-sentence circumstance which this Court is entitled to have regard to on re-sentencing.
I consider that the effective non-parole period referred to by the sentencing judge consisting of a term of two years and five months is, in all the circumstances, manifestly excessive. However, by reason of the error in sentencing in failing to apply the Pearce principles, it is unnecessary to express any concluded view as to whether the total effective sentence imposed could also be said to be manifestly excessive.
Accordingly, on re-sentencing, I consider that, balancing the objective and subjective factors to which I have earlier referred, that a lesser sentence is warranted than that imposed by the sentencing judge.
In re-sentencing the applicant, for reasons stated below, I am of the opinion that, allowing for concurrency, cumulation and totality, that the total effective sentence be a period of two years and six months to commence two months after the operation of the sentences for the State offences. The total effective minimum period of imprisonment, accordingly, is a period of one year and eight months in respect of the Corporations Act offences, cumulative to the State offences.
In respect of the two offences under s.300(1) of the Crimes Act, I accept the submission made on behalf of the applicant that there was no evidence that the two persons concerned each lost $100,000. The total amount invested by them was $91,103.34. I propose to take that matter into account in re-sentencing in respect of those two State offences.
Accordingly, the orders I propose are:-
(1)Leave to appeal be granted.
(2)The appeal be upheld.
(3)That the orders of the District Court made on 25 July 2008 be set aside.
(4)That in lieu the following sentences in respect of the State offences and the Corporations Act offences be imposed:-
(a)In respect of the offence contrary to s. 300(1) of the Crimes Act 1900 occurring on or about 4 September 2006, a fixed term of imprisonment of nine months to commence on 25 July 2008 and to expire on 24 April 2009.
(b)In respect of the offence contrary to s.300(1) of the Crimes Act 1900 committed on or about 3 October 2006, a concurrent term of imprisonment of nine months to commence on 25 July 2008 and to expire on 24 April 2009.
(c)In respect of the offences contrary to s.1041G of the Corporations Act 2001, being the group of offences in sequences numbers 1, 2, 4 and 6 in the Court Attendance Notice, sentences in the following terms:-
(i)In respect of the offence in sequence number 1, a period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(ii)A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate on 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(iii)In respect of the offence in sequence number 2, a concurrent period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(iv)A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate on 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(v)In respect of the offence in sequence number 4, a concurrent period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(vi)A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate from 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(vii)In respect of the offence in sequence number 6, a concurrent period of imprisonment of two years and six months to commence on 25 September 2008 and to expire on 24 March 2011.
(viii)A recognisance release order in respect of the last-mentioned sentence is made under s.19AC of the Crimes Act 1914 (Cth) to operate on 24 March 2010. The offender, Peter Braun, himself to give security without surety after he has served the above period of imprisonment in respect of that offence in the amount of $150.
(ix)In respect of the offence in sequence number 3, a concurrent term of imprisonment of one year and six months commencing on 25 September 2008 and to expire on 24 March 2010.
(x)In respect of the offence in sequence number 5, a concurrent term of imprisonment of one year and six months commencing on 25 September 2008 and to expire on 24 March 2010.
In respect of each of the sentences imposed with respect to the offence in sequence number 3 and the offence in sequence number 5 set out above and pursuant to s.19AC(4) of the Crimes Act 1914 (Cth), I decline to make a recognisance release order under s.19AC(2) by reason of the nature and circumstances of those offences and the antecedents of the applicant, in particular, by reason of the fact that those sentences are concurrent with and expire on the same date as the sentences imposed with respect to sequence numbers 1, 2, 4 and 6 in the Court Attendance Notice.
The total effective period of imprisonment in respect of (a) the two offences under s.300(1) of the Crimes Act 1900 and, (b) the sentences imposed in respect of the six offences pursuant to s.1041G of the Corporations Act 2001 is a period of two years and eight months commencing on 25 July 2008 and to expire on 24 March 2011, the recognisance release orders to operate on 24 March 2010, that is, one year and eight months after the commencement of the sentences imposed with respect to the offences under s.300(1) of the Crimes Act. Accordingly, the applicant will become eligible for release on 24 March 2010.
HARRISON J: I agree with Hall J.
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AMENDMENTS:
20/11/2008 - [123] - Incorrect reference to sequence number 1, 2, 5 and 6 - amended to read 1, 2, 4 and 6
[124] - Typographical error in date 24 March 2004 - amended to read 24 March 2011 - Paragraph(s) [123], [124]
11/03/2009 - Addition of specification of amount of security - Paragraph(s) [122](4)(c)(ii), (iv), (vi) and (viii)
LAST UPDATED:
11 March 2009
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