Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Hartman v R [2011] NSWCCA 261 Hearing dates: 9 November 2011 Decision date: 07 December 2011 Before: Whealy JA
Adams J
Latham JDecision: The orders of the Court are:-
1. Leave to appeal is granted.
2. The appeal is allowed and the sentences passed upon the offender on 2 December 2010 are quashed.
3. In lieu thereof, the following sentences are imposed:-
(a) In relation to count 1, having regard to the Schedule of offences, the offender is sentenced to a term of imprisonment of 2 1/2 years commencing on 2 December 2010 and expiring on 1 June 2013.
(b) In relation to counts 2-19, the offender is sentenced to a term of imprisonment for 2 years, each term to commence on 2 December 2010 and expiring on 1 December 2012.
(c) In relation to count 20, having regard to the Schedule of offences, the offender is sentenced to a term of imprisonment for 18 months commencing on 2 June 2012 and expiring on 1 December 2013.
(d) In relation to counts 21-25, the offender is sentenced to a term of imprisonment of 16 months, each term to commence on 2 June 2012 and expiring on 1 October 2013.
(e) We specify a single pre-release period of imprisonment of 15 months to commence on 2 December 2010 and to expire on 1 March 2012. We order that, upon the expiry of the 15 month period of imprisonment specified, the offender be released upon his entering into a recognisance self in the sum of $1,000 to observe and comply with the conditions set out in the document annexed hereto and marked "A". In compliance with the provisions of s 20 Crimes Act 1914 (Cth), the obligation to so observe and comply will be for a period of 18 months from 1 March 2012.
Catchwords: CRIMINAL LAW - Sentencing appeal - insider training offences - error by trial Judge in reflecting assistance to authorities
CRIMINAL LAW - matters relevant to re-sentence - need for general deterrence in insider trading offences - subjective circumstances - co-operation with authorities - future assistance - whether psychiatric condition relevant - whether connected to offences - gambling addiction - remorse - rehabilitation - Ellis discountLegislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), s 13
Corporations Act 2001 (Cth), ss 1043A(1), (2), 1311(1)
Crimes Act 1914 (Cth), ss 16A, 16BA, 19AC, 21E
Criminal Appeal Act 1912, s 6(3)
Proceeds of Crime Act 2002 (Cth)Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
DPP (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; A Crim R 123
Hili v R (2010) 85 ALJR 196
Johnson v the Queen (2004) 78 ALJR 616
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Lodhi v…
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- AGLC
- Hartman v R [2011] NSWCCA 261
- Case
- [2011] NSWCCA 261
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CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge erred in the consideration of the general deterrence aspect and whether the subjective circumstances of the appellant warranted a lesser sentence. The court considered the need for general deterrence in insider trading offences and the subjective circumstances of the appellant, including his cooperation with authorities, future assistance, psychiatric condition, remorse, and rehabilitation. The court also considered the Ellis discount, which is a discount applied to the sentence for a defendant who has shown remorse and cooperated with authorities. The court had to determine whether the appellant's psychiatric condition was relevant to the offences and whether it was connected to the offences. The court also had to consider whether the appellant's gambling addiction was relevant to the offences and whether it was connected to the offences.
The court found that the sentencing judge had erred in the consideration of the general deterrence aspect and had failed to give adequate weight to the appellant's subjective circumstances. The court found that the appellant had shown remorse and had cooperated with authorities, and that his psychiatric condition and gambling addiction were relevant to the offences and connected to the offences. The court found that the appellant's subjective circumstances warranted a lesser sentence. The court ordered that the appellant's sentence be reduced to an aggregate term of imprisonment of three years with a non-parole period of two years. The court also ordered that the appellant's sentence for Count 1 be reduced to two years with a non-parole period of one year, and that the sentence for Count 20 be reduced to one year with a non-parole period of six months. The court ordered that the sentences for Counts 2-19 and Counts 21-25 be reduced to concurrent sentences of six months imprisonment with a non-parole period of three months.
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
The applicant had pleaded guilty to nineteen charges of insider trading contrary to ss 1043A(1) and 1311(1) of the Corporations Act 2001 (Cth) (Counts 1-19) and six charges of communicating inside information contrary to ss 1043A(2) and 1311(1) of the Corporations Act (Counts 20-25). The applicant also admitted his guilt in relation to further charges of a like kind that were listed on a schedule. The additional insider trading matters were taken into account in the sentence imposed for Count 1, while the additional 'tipping' matters were taken into account in the sentence imposed for Count 20. Each offence carried a maximum penalty of imprisonment for five years and/or a maximum fine of $220,000. In general terms, the applicant had traded with, and communicated to another person, inside information over an 18-month period. This was between about the middle of 2007 and up to early January 2009. The "information" consisted of targets set for the acquisition and disposal of shares. These targets were set by the applicant's employer Orion Asset Management Limited (Orion). The applicant was employed by Orion as an equities dealer. In that capacity, he acquired the "information" of the target set by Orion's portfolio managers. The applicant used the information to engage in "front-running"; off-market trading in Contracts for Difference (CFDs). This occurred from about the middle of 2008 to January 2009. Earlier, from mid 2007 to mid 2008, the applicant had passed inside information to a close friend (Mr Curtis) knowing that he would acquire CFD's in the relevant stock (the tipping offences). Prior to sentence, the applicant had consented to forfeiture of $1,575,949.43 under the Proceeds of Crime Act 2002 (Cth). This represented the substantial portion of the total profit particularised in the charges. The applicant was sentenced to an aggregate term of imprisonment of four and a half years. A single non-parole period of three years was fixed. The non-parole period commenced on 2 December 2010 and is to expire on 1 December 2013. The individual sentences imposed on the applicant were as follows: The insider trading sentences were made concurrent with one another, as were the tipping sentences. The latter, however, were then partially accumulated upon the sentence for Count 1. The sentence structure involves a substantial measure of accumulation between the two groups of sentences. The tipping sentences share only six months of concurrency with the sentence for Count 1 and they commence after the expiration of the sentences for Counts 2-19. The applicant contends that the sentences imposed upon him were unduly severe in all the circumstances of the case such that lesser sentences are warranted in law: s 6(3) of the Criminal Appeal Act 1912 . The particulars of error contained in the Grounds of Appeal are as follows: (On the hearing of the application for Leave to Appeal, Ground 4 was modified. It was argued that the Sentencing Judge placed too much weight on the aspect of general deterrence and had failed to give adequate weight to the applicant's subjective circumstances. In other words, it was conceded that there was a need to reflect general deterrence in the sentences but that this aspect of the sentence was modified by other matters, particularly the applicant's mental health problems).