CITATION: John Michael HIGGINS v Regina [2006] NSWCCA 38 HEARING DATE(S): 22 February 2006 JUDGMENT OF: Spigelman CJ at 1, 40; Barr J at 37; Howie J at 38 EX TEMPORE JUDGMENT DATE: 02/22/2006 DECISION: 1. Leave to appeal granted.; 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – SENTENCE APPEAL– Application for leave to appeal against severity of sentence. - CRIMINAL LAW – SENTENCE APPEAL– Subjective circumstances - Belief by those committing fraud or misappropriation that they will rectify the situation before being caught is common and not entitled to substantial weight in the sentencing exercise. - CRIMINAL LAW – SENTENCE APPEAL– Whether trial judge gave sufficient reasons regarding the factors in s16A(2)(a) of Crimes Act 1914 (Cth). - CRIMINAL LAW – SENTENCE APPEAL– Whether sentence manifestly excessive. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – Considerable weight to be accorded to general deterrence in white-collar crimes involving breach of trust. LEGISLATION CITED: Corporations Act 2001 (Cth): s1041G
Crimes Act 1914 (Cth): s16A
Crimes Act 1900 (NSW): s178A
Crimes (Sentencing Procedure Act) 1999 (NSW): s21ACASES CITED: R v Corbett (1991) 52 A Crime R 112
R v Dubois (2004) 88 SASR 304PARTIES: John Michael Higgins (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2032/2005 COUNSEL: M.B. Lee (Applicant)
W. Abraham (Respondent)SOLICITORS: Harris Freidman Page (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1056 LOWER COURT JUDICIAL OFFICER: Woods DCJ
2005/2032
Wednesday 22 February 2006SPIGELMAN CJ
BARR J
HOWIE J
1 SPIGELMAN CJ: Between February 1998 and August 2002 the Applicant operated as an investment adviser through Macquarie Towns Financial Services Pty Limited (“MTFS”), a company controlled by the Applicant. Whilst acting as an investment adviser the Applicant had the proper authorisation enabling him to act as a securities representative for AMP Financial Planning between April and November 1995; Financial Wisdom Limited, April 1995 to March 2000; Matrix Planning Solutions, March 2000 to May 2001; and Garrisons Limited, May 2001 to March 2002.
2 The Applicant was charged with three charges of dishonest conduct contrary to s1041G of the Corporations Act 2001 (Cth) and fifteen charges of fraudulent misappropriation contrary to s178A of the Crimes Act 1900 (NSW).
3 The three charges contrary to s1041G of the Corporations Act were all in the following form:
- “Between about (date) and about (date), at Sydney in the State of New South Wales being a person carrying on a financial services business, namely, Macquarie Town Services Pty Limited, engaged in dishonest conduct in the course of carrying on that business by holding himself out to a person as an authorised financial adviser when that authority had been revoked.
4 The fifteen charges contrary to s178A of the Crimes Act were all in the following form:
- “On or about (date) at Sydney in the State of New South Wales fraudulently misappropriated to his own use certain money, namely, the sum of $X, in violation of the…
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- AGLC
- John Michael Higgins v Regina [2006] NSWCCA 38
- Case
- [2006] NSWCCA 38
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved determining whether the trial judge's consideration of the appellant's belief that the fraud would be rectified was appropriately factored into the sentencing process, whether the sentence was manifestly excessive, and whether the trial judge gave adequate reasons concerning the statutory factors. Additionally, the court needed to consider the weight to be given to general deterrence in cases of white-collar crime involving breaches of trust.
The court found that the appellant's belief that the fraud would be rectified before detection was a common factor in such cases and did not warrant substantial weight in the sentencing decision. The court held that the trial judge had not erred in this regard and had appropriately exercised discretion. Furthermore, the court determined that the trial judge had provided sufficient reasons for the sentence, aligning with the statutory requirements. Given the nature of the offence and the importance of general deterrence in white-collar crimes, the court found that the sentence was not manifestly excessive. The appeal was therefore dismissed.
No further orders were made by the court beyond the dismissal of the appeal.
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