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Heath v R

Heath v R

Case [2016] NSWCCA 24 25 February 2016

Objective Seriousness

Criminal Law

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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 discretion
Legislation 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 23
Category: Principal judgment
Parties: Nigel Derek Heath (Applicant)
Regina (Crown)
Representation:
Counsel:
M Thangaraj SC (Applicant)
A N Williams (Crown)
Solicitors:
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

SIMPSON J: I agree with McCallum J.
JOHNSON J: I agree with McCallum J.
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…

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 Heath v R

Details

AGLC: Heath v Regina [2016] NSWCCA 24
Case: [2016] NSWCCA 24
Decision Date: 25 February 2016

CaseChat Overview and Summary

The applicant, Heath, appealed against his sentence for market misconduct offences, arguing that the sentencing judge erred in rejecting his evidence regarding his lack of knowledge of the criminality of his actions. The Court of Appeal in Victoria was tasked with determining whether the judge's rejection of the applicant's evidence constituted an error and, if so, whether it led to a denial of procedural fairness. The court also needed to decide whether the judge misapprehended the seriousness of the offending and whether the appeal court should re-exercise the sentencing discretion.

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