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DPP (Cth) v Couper

DPP (Cth) v Couper

Case [2013] VSCA 72 10 April 2013

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2012 0163

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
	v
PETER JOHN COUPER	Respondent

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JUDGES	HARPER and TATE JJA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 November 2012
DATE OF JUDGMENT	10 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 72
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Gaynor, 29 June 2012)

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Criminal Law – Sentence – Appeal by DPP (Cth) – ‘White collar crime’ – Respondent pleaded guilty to charges in contravention of ss 1307(1) and 1309(1) of the Corporations Act 2001 (Cth) and s 64(1) of the Australian Securities and Investments Commission Act 2001 (Cth) – Respondent sentenced to total effective sentence of 21 months imprisonment, to be released upon giving security by recognisance of $1,000 on the condition that he be of good behaviour for period of 3 years together with a fine of $10,000 – Whether sentence manifestly inadequate – Repeated instances of dishonesty over protracted period of time – Moral culpability and general deterrence – Respondent instructed innocent employees to record unlawful transactions – Respondent gave false and misleading information to auditor and in course of ASIC examination – Respondent otherwise of good character – Not reasonably open to sentencing judge to impose wholly suspended sentence.

Sentencing – Whether sentencing judge had power to impose multiple recognisance release orders under s 20(1)(b) of the Crimes Act 1914 (Cth) – Sentencing judge fell into error and should have ordered only a single recognisance period.

Sentencing - Discounts under s 21E of the Crimes Act 1914 (Cth) and s 6AAA of the Sentencing Act 1991 (Vic) – Sentence reduction for each separate factor to be identified – Actual combined reduction to be identified – Appeal allowed – Respondent re-sentenced to total effective sentence of one year and 10 months imprisonment commencing on 29 June 2012 – Respondent to serve 60 days imprisonment commencing from today’s date, pay fine of $10,000 and be of good behaviour for a period of two years commencing on 29 June 2012.

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Appearances:	Counsel	Solicitors
For the Director	Mr D D Gurvich	Solicitor for the Commonwealth Director of Public Prosecutions
For the Respondent	Mr P A Dunn QC with Mr L C Carter	Mills Oakley Lawyers

HARPER JA:

I have had the benefit of reading, in draft, the judgment of Tate JA. I agree with the orders proposed by her Honour, and with her reasons for proposing them. In addition, I wish to specifically associate myself with her Honour’s exposition of the procedure to be followed when formulating a sentence in which reductions have been made to reflect the impact on the sentence of s 21E of the Crimes Act 1914 (Cth) and s 6AAA of the Sentencing Act 1991 (Vic).

TATE JA:

Introduction

This is an appeal by the Commonwealth Director of Public Prosecutions (‘the DPP’) against the alleged manifest inadequacy of a sentence imposed upon Peter Couper (‘the respondent’) in respect of two charges of falsification…

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 DPP (Cth) v Couper

Details

AGLC: Director of Public Prosecutions (Cth) v Couper [2013] VSCA 72
Case: [2013] VSCA 72
Decision Date: 10 April 2013

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (Commonwealth) versus Couper involved an appeal against the sentencing of the respondent, who had pleaded guilty to charges related to breaches of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth). The primary legal issue was whether the sentence of 21 months imprisonment, which was wholly suspended, was manifestly inadequate given the respondent's persistent dishonesty over an extended period. The respondent had instructed employees to record unlawful transactions, provided false information to an auditor, and misled ASIC during an examination. The respondent, who had a previously unblemished character, had been sentenced to imprisonment, to be suspended upon giving security by recognisance of $1,000, with the condition of good behaviour for three years, along with a fine of $10,000.

The court considered the moral culpability and the need for general deterrence in sentencing white-collar crimes. The court held that it was not reasonably open to the sentencing judge to impose a wholly suspended sentence due to the gravity of the offences and the respondent’s repeated acts of dishonesty. The court also addressed the issue of the sentencing judge's authority to impose multiple recognisance release orders, concluding that only a single recognisance period should have been ordered under the Crimes Act 1914 (Cth). Furthermore, the court examined the application of sentence discounts under the Crimes Act 1914 (Cth) and the Sentencing Act 1991 (Vic), determining the appropriate combined reduction.

Ultimately, the court allowed the appeal and re-sentenced the respondent to a total effective sentence of one year and 10 months imprisonment, with 60 days to be served immediately, followed by the remainder on 29 June 2012. The respondent was also ordered to pay a fine of $10,000 and be of good behaviour for a period of two years commencing on 29 June 2012.

Orders