Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Heath v Regina [2016] NSWCCA 24 Hearing dates: 2 February 2016 Date of orders: 25 February 2016 Decision date: 25 February 2016 Before: Simpson JA at [1]
Johnson J at [2]
McCallum J at [3]Decision: Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced, for the matched trade offence, to a term of imprisonment of 18 months commencing on 25 September 2015 and expiring on 24 March 2017; for the market manipulation offence, to a term of imprisonment of 18 months commencing on 25 December 2015 and expiring on 24 June 2017; applicant to be released today, 25 February 2016, on a recognisance release order in the sum of $10,000 without surety to be of good behaviour for the period ending on 24 June 2017.
Catchwords: CRIMINAL LAW – appeal against sentence – market misconduct offences – whether sentencing judge erred in rejecting applicant’s evidence as to lack of knowledge of criminality – where applicant’s evidence unchallenged – impact on judge’s assessment of objective seriousness – whether applicant was denied procedural fairness
CRIMINAL LAW – appeal against sentence – market misconduct offences – whether sentencing judge misapprehended seriousness of offending – where applicant’s unchallenged evidence addressed extent of impact of his offending on the market
CRIMINAL LAW – appeal against sentence – proper approach where both error and denial of procedural fairness established – where remittal of proceedings would defeat the object of the appeal – consideration of appropriateness of appellate court re-exercising the sentencing discretionLegislation Cited: Australian Securities and Investment Commission Act 2001(Cth), s19
Corporations Act 2001 (Cth), ss 1041A(c), 1041B(1)(b)
Crimes Act 1914 (Cth), s 16A(2)(p)
Criminal Code 1995 (Cth), Ch 1, cl 5.6(2), cl 5.4(4)Cases Cited: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Fame Decorator Agencies Pty Ltd v Jeffries Industries Ltd (1998) 28 ACSR 58
Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
Khoo v R [2013] NSWCCA 323
O’Neil-Shaw v R [2010] NSWCCA 42
R v Glynatsis [2013] NSWCCA 131; 230 A Crim R 99
R v Hinton [2001] NSWCCA 405; 134 A Crim R 286
R v Togias [2001] NSWCCA 522; 127 A Crim R 23Category: Principal judgment Parties: Nigel Derek Heath (Applicant)
Regina (Crown)Representation: Counsel:
Solicitors:
M Thangaraj SC (Applicant)
A N Williams (Crown)
Watson Mangioni Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2014/274829-004 Publication restriction: None Decision under appeal
- Court or tribunal:
- District Court – Sydney
- Date of Decision:
- 25 September 2015
- Before:
- King SC DCJ
- File Number(s):
- 2014/27489
Judgment
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SIMPSON J: I agree with McCallum J.
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JOHNSON J: I agree with McCallum J.
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McCALLUM J: Nigel Heath seeks leave to appeal against the sentences imposed upon him after he pleaded guilty in the District Court to two market misconduct offences brought against him by the Commonwealth…
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- AGLC
- Heath v Regina [2016] NSWCCA 24
- Case
- [2016] NSWCCA 24
- Decision Date
CaseChat Overview and Summary
The court found that the sentencing judge erred in rejecting the applicant's evidence about his lack of knowledge, as it was unchallenged. This error impacted the judge's assessment of the objective seriousness of the offence. The court held that the applicant was denied procedural fairness because the judge failed to consider the unchallenged evidence about the extent of the impact of the offending on the market. Furthermore, the court concluded that the judge misapprehended the seriousness of the offending due to the unchallenged evidence.
Given that both error and denial of procedural fairness were established, the court considered the appropriate course of action. The court found that remittal of the proceedings would defeat the object of the appeal. Consequently, the court re-exercised its sentencing discretion and substituted a new sentence for the one imposed by the trial judge. The new sentence reflected the appropriate consideration of the applicant's evidence and the objective seriousness of the offending.
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
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