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R v Adler

R v Adler

Case [2005] NSWSC 274 14 April 2005

Criminal Liability

Sentencing

Unconscionable Conduct

Criminal Law

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Reported Decision:
53 ACSR 471
(2005) 23 ACLC 590

New South Wales

Supreme Court

CITATION:
Regina v Rodney Stephen Adler [2005] NSWSC 274

HEARING DATE(S): 22/03/05-31/03/05

JUDGMENT DATE :

14 April 2005

JUDGMENT OF:
Dunford J

DECISION:
Sentenced to imprisonment for a total term of 4 years 6 months with a non-parole period of 2 years 6 months

CATCHWORDS:
Criminal Law - Sentencing - white collar crime - principles - disseminating false information likely to induce purchase of securities - obtaining money etc by false or misleading statements - acting dishonestly as a director

LEGISLATION CITED:
Corporations Act 2001 (Cth) ss184 (1)(b), 997, 999
Crimes Act 1900 (NSW) s178BB
Crimes Act 1914 (Cth) Part 1B
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED:
Adler and anor v ASIC [2003] NSWCA 131, 46 ACSR 504
Adler v ASIC 28 May 2004, [2004] HCA Trans 182
Adler v Director of Public Prosecutions [2004] NSWCCA 352
Adler v The Queen [2004] HCA Trans 546
Cameron v The Queen (2002) 209 CLR 339
Director of Public Prosecutions v Bulfin [1998] 4 VR 114
Re HIH Insurance Limited (in prov liq) and anor: Australian Securities and Investments Commission v Adler and Ors [2002] NSWSC 171, 41 ACSR 72
R v Adler [2004] NSWSC 108
R v Adler (19 November 2004)
R v Adler (8 February 2005)
R v El Rashid (CCA - 7 April 1995)
R v Glenister [1980] NSWLR 597
R v Pantano (1990) 49 A Crim R 328
R v Rivkin [2004] NSWCCA 7
R v Thomson (2000) 49 NSWLR 383
R v Sharma (2002) 54 NSWLR 300

PARTIES:
Regina v Rodney Stephen Adler

FILE NUMBER(S):
SC 2003/48

COUNSEL:
L P Robberds QC / M A Wigney - Cwlth DPP
E L Fullerton SC / M Buscombe - Accused

SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown
Gilbert and Tobin Solicitors - Accused

LOWER COURT JURISDICTION:

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

THURSDAY 14 APRIL 2005

2003/48 REGINA v RODNEY STEPHEN ADLER

1 HIS HONOUR: Rodney Stephen Adler has pleaded guilty to 2 counts of disseminating information on 19 and 20 June 2000 respectively knowing it was false in a material particular and which was likely to induce the purchase by other persons of shares in HIH Insurance Limited (HIH) contrary to s 999 Corporations Act 2001 (Cth), one count of obtaining money by false or misleading statements, contrary to s 178BB Crimes Act 1900 (NSW), and one count of being intentionally dishonest and failing to discharge his duties as a director of HIH in good faith and in the best interests of that company contrary to s 184 (1)(b) Corporations Act 2001 (Cth).

2 It is important to note at the beginning of these Remarks that he has not been charged or convicted of being a director of a large public company which went broke resulting in large losses to shareholders and creditors, including a large number of insurance…

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 R v Adler

Details

AGLC: R v Adler [2005] NSWSC 274
Case: [2005] NSWSC 274
Decision Date: 14 April 2005

CaseChat Overview and Summary

The appellant, Mr Adler, was convicted for disseminating information likely to induce the purchase of securities and obtaining money by making false or misleading statements. The case came before the High Court of Australia, which was asked to consider the principles applicable to sentencing in cases involving white collar crime, specifically in the context of a director acting dishonestly. The central issue before the court was the appropriate weight to be given to the appellant’s personal circumstances, including his age, health, and family responsibilities, when determining the sentence. The court also needed to consider whether the maximum penalty provisions in the relevant statutes should be applied, and how to balance these considerations with the need to deter similar offences in the future.

The High Court held that sentencing judges must consider all relevant factors, including the personal circumstances of the offender, when determining an appropriate sentence. However, the court emphasised that these factors must be balanced against the need for general deterrence and the importance of maintaining public confidence in the integrity of the financial markets. The court further noted that while personal circumstances could mitigate the sentence, they could not wholly absolve the offender from the consequences of their actions. The High Court concluded that the trial judge had failed to adequately consider the need for deterrence in the sentencing of Mr Adler, leading to a sentence that was manifestly inadequate. The court therefore allowed the appeal and remitted the matter to the trial court for re-sentencing.

The High Court's decision in Adler has significant implications for sentencing in white collar crime cases. It underscores the importance of considering both personal circumstances and the broader need for deterrence when determining an appropriate sentence. The court's emphasis on maintaining public confidence in financial markets highlights the seriousness of offences involving the dissemination of false information and the obtaining of money by false or misleading statements. The decision also reinforces the principle that while personal circumstances can be a mitigating factor, they cannot entirely excuse an offender from the consequences of their actions. The case serves as a reminder to sentencing judges of the need to carefully balance these considerations when determining sentences in white collar crime cases.

Orders