Commonwealth Director of Public Prosecutions v Robert Bart Doff

[2005] NSWSC 51

CITATION:	Commonwealth Director of Public Prosecutions v Robert Bart Doff [2005] NSWSC 51
HEARING DATE(S):	17 December 2004, 11 February 2005
JUDGMENT DATE :	11 February 2005
JUDGMENT OF:	Barr J at 1
DECISION:	Defendant ordered to pay to the Commonwealth of Australia a pecuniary penalty of $37,255.75.

PARTIES:	Commonwealth Director of Public Prosecutions, Robert Bart Doff
FILE NUMBER(S):	SC 14163/2004
COUNSEL:	P Byrne SC M Buscombe and P R McGuire
SOLICITORS:	John De Mestre & Co Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

11 FEBRUARY 2005

14163/2004 COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS v ROBERT BART DOFF
JUDGMENT

1 HIS HONOUR: This is an application by the Director of Public Prosecutions for an order under s116 Proceeds of Crime Act 2002 that the defendant, Robert Bart Doff, pay to the Commonwealth an amount determined by the Court. On 19 November 2004 the defendant was found guilty by a jury of the offence of insider trading. I have today imposed sentence on Mr Doff, ordering him to serve a number of hours of community service work and fining him.

2 Section 116 requires the Court to make an order of the kind sought here if the Director of Public Prosecutions applies for it and the Court is satisfied that the defendant has been convicted of an indictable offence and has derived benefits therefrom and that the offence is a serious offence. A serious offence includes one punishable by imprisonment for three years or more. The maximum period of imprisonment that may be imposed for the offence of which the defendant has been convicted is five years, so his offence is a serious one. The Director of Public Prosecutions has made out his case for an order.

3 The manner of determining the amount of any pecuniary penalty order is prescribed by Chapter 2, Part 2 – 4 Division 2 of the Act. As that Division applies to the present case the amount of the order is the total amount of benefits received by the defendant, without deduction of outgoings. It is agreed that the total proceeds derived by the defendant’s company Jetoten Pty Limited upon the sale of the shares was $67,255.75. Since Jetoten Pty Limited was under the control of the defendant, the proceeds came under the control of the defendant. He therefore received a benefit equivalent to that sum.

4 The only deduction the Court may make as the Act applies to this case is that provided by s132, by which the Court may if it considers it appropriate reduce the pecuniary penalty amount by an amount equal to that of any fine payable by the defendant for the same offence.

5 I have today imposed a fine of $30,000.00 on the defendant and I consider it appropriate to reduce the amount of the pecuniary penalty order that I shall make by an amount equal to that amount. The order that I make, therefore, is as follows -

1. Order that the defendant pay to the Commonwealth of Australia a pecuniary penalty of $37,255.75.

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