Grimm v The King

[2025] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0192

BRADLEY GRIMM	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, KENNEDY and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	07 February 2025
DATE OF JUDGMENT:	19 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 11
JUDGMENT APPEALED FROM:	[2024] VCC 1360 (Judge O’Connell); (County Court, Judge Todd, 27 June 2024)

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CRIMINAL LAW – Appeal – Conviction – Applicant pleaded guilty to aiding and abetting dishonest conduct in the course of carrying on a financial services business contrary to s 1041G of the Corporations Act 2001 (Cth) (the ‘Act’) – Where refusal of application to change plea – Whether substantial miscarriage of justice by reason that applicant could not in law be convicted – Whether complete defence because the disclosure requirements in the fundraising provisions in ch 6D were complied with by reason of s 708 of the Act – Whether plea attributable to genuine consciousness of guilt where applicant believed he had a defence by reason of s 708 – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Whether reference to DPP v Bulfin [1998] 4 VR 114 appropriate – Leave to appeal refused.

Corporations Act 2001 (Cth) ch 6D ss 703, 704, 705, 708, 727; ch 7 ss 760A, 1041G; s 1311, considered – Criminal Procedure Act 2009 ss 276, 280, applied.

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; Moore (a pseudonym) v The King (2024) 419 ALR 169; Gurappajiv The Queen [2018] VSCA 187; Peters v The Queen (No 2) [2019] VSCA 292; R v A2 (2019) 269 CLR 507; Leimonitis v The Queen [2018] VSCA 198, applied – Gore v Australian Securities and Investments Commission [2017] FCAFC 13; R v Donaldson & Poumako [2009] SASC 31; Bell v The Queen [2001] WASCA 174; Weston v The Queen [2015] VSCA 354, considered – DPP v Kawecki [2020] VCC 1751, distinguished.

Counsel
Applicant:		Mr S Gillespie-Jones with Mr S Andrianakis
Respondent:		Mr S Ginsbourg with Mr N Barron
Solicitors
Applicant:	Neill Ogge Lawyers
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA
KENNEDY JA

T FORREST JA:

1. The applicant was an Australian financial services licensee, and worked as a licensed financial advisor for Ostrava Equities Pty Ltd (‘Ostrava’), a company he controlled. Between February and November 2015, he advised three clients to set up self-managed superannuation funds in which they deposited their retirement savings. The applicant obtained control of the bank accounts of those funds. He then transferred money, shares, and convertible notes from those bank accounts to other companies he controlled without making relevant disclosure, inter alia, about his control.

2. The applicant was subsequently charged with three counts of aiding, abetting, counselling, or procuring the commission of an offence by Ostrava in engaging in dishonest conduct in the course of carrying on a financial services business…