R v Bigatton (No 5) - [2024] NSWDC 285

District Court

New South Wales

Medium Neutral Citation: R v Bigatton (No 5) [2024] NSWDC 285
Hearing dates: 5 July 2024
Date of orders: 12 July 2024
Decision date: 12 July 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
(1)   The Offender is convicted.
(2)   Order, pursuant to s 20(1)(a), the conditional release of the Offender upon the condition that he enter into a recognisance, self in the sum of $100 without security.
(3)   The condition of the recognisance is that he be of good behaviour for a period of 3 years commencing 12 July 2024 and expiring 11 July 2027.

Catchwords:
SENTENCING – Commonwealth offences – Corporations Act offences – Collapse of BitConnect Lending Platform – Financial services advice – Effect of disclaimer stating that financial advice is not financial advice – General deterrence – Purpose of Chapter 7 of the Corporations Act – Strong subjective case – Custodial sentence not warranted – Offender convicted and released on recognisance release order to be of good behaviour for 3 years

Legislation Cited:
Corporations Act 2001 (Cth) s 760A; s 911B(1)(a)‑(e);
Crimes Act 1914 (Cth) Part 1B; s 16A; s 16A(1); s 16A(2)(a)-(n); s 20(1)(a)
Proceeds of Crime Act 2002 (Cth)

Cases Cited:
Baden v The Queen [2020] NSWCCA 23
Bae v R [2020] NSWCCA 35
Cameron v The Queen (2002) 209 CLR 339
Cameron v The Queen (2002) 209 CLR 339
Commissioner of the Australian Federal Police v Bigatton [2020] NSWSC 245
Decision restricted [2024] NSWCCA 23
DPP v Verdins (2007) 16 VR 268
Huang aka Liu v R [2018] NSWCCA 70
R v Adler [2005] NSWSC 274
R v Bigatton (No 2) [2023] NSWDC 290
R v Bigatton (No 3) [2023] NSWDC 291
R v Bigatton (No 4) [2023] NSWDC 458
R v Cox [2013] QCA 10
R v Katsoulis [2008] VSCA 278
R v Todd [1982] 2 NSWLR 517
Xiao v R [2018] NSWCCA 4

Category: Sentence
Parties: Rex
John Louis Anthony Bigatton (Offender)
Representation:
Counsel:
A Williams (Crown)
C Parkin (Offender)
Solicitors:
J Cho (CDPP)
Kings Law Group (Offender)

File Number(s): 2020/293887
Publication restriction: Nil

JUDGMENT

Overview

This sentence, concerning events in 2017 and 2018 involving the BitConnect Lending Platform in Australia, has a long and complicated procedural history. I have delivered a number of interlocutory judgments, including R v Bigatton (No 2) [2023] NSWDC 290; R v Bigatton (No 3) [2023] NSWDC 291; R v Bigatton (No 4) [2023] NSWDC 458. Each of those concerned significant interlocutory issues which needed to be determined before the matter could be set down for trial. The matter has also been to the Court of Criminal Appeal on one occasion, I think from No 3, however the decision, which was delivered on 23 February 2024, is currently restricted: Decision restricted [2024] NSWCCA 23.
So it is that what commenced on 17 November 2022 when the Office of Director of Public Prosecutions (Commonwealth) instituted proceedings against the Offender with six offences, concludes today with this sentence. The…

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 Bigatton (No 5)

Details

AGLC: R v Bigatton (No 5) [2024] NSWDC 285
Case: [2024] NSWDC 285
Decision Date: 12 July 2024

CaseChat Overview and Summary

In this case, the appellant, Mr. Bigatton, faced sentencing for his involvement with the collapse of the BitConnect Lending Platform. The court considered his role in providing financial services advice through the platform. The legal issues revolved around the application of Chapter 7 of the Corporations Act, specifically in relation to the offence of providing financial services advice without a licence. The court also examined the effect of the disclaimer stating that the financial advice provided was not, in fact, financial advice. The primary focus was on determining whether a custodial sentence was appropriate given the circumstances and the need for general deterrence.

The court examined the nature and extent of Mr. Bigatton's involvement in the BitConnect Lending Platform. It took into account the significant losses suffered by the victims due to the collapse of the platform. The court recognised the strong subjective case for punishment but also considered the lack of direct financial gain for Mr. Bigatton. It noted the importance of general deterrence in enforcing the Corporations Act. The court concluded that, while the offence was serious, the particular circumstances did not warrant a custodial sentence. Instead, it opted for a recognisance release order, emphasising the need for Mr. Bigatton to be of good behaviour for three years.

The court ordered that Mr. Bigatton be convicted and released on the condition that he enter into a recognisance, self in the sum of $100 without security. The recognisance release order required him to be of good behaviour for a period of three years, commencing on 12 July 2024 and expiring on 11 July 2027. The court's decision reflected a balanced approach, considering the gravity of the offence, the need for general deterrence, and the individual circumstances of the offender.

Orders

Orders of the court

(1) The Offender is convicted.

(2) Order, pursuant to s 20(1)(a), the conditional release of the Offender upon the condition that he enter into a recognisance, self in the sum of $100 without security.

(3) The condition of the recognisance is that he be of good behaviour for a period of 3 years commencing 12 July 2024 and expiring 11 July 2027.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	R v Bigatton (No 5) [2024] NSWDC 285
Hearing dates:	5 July 2024
Date of orders:	12 July 2024
Decision date:	12 July 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	(1) The Offender is convicted. (2) Order, pursuant to s 20(1)(a), the conditional release of the Offender upon the condition that he enter into a recognisance, self in the sum of $100 without security. (3) The condition of the recognisance is that he be of good behaviour for a period of 3 years commencing 12 July 2024 and expiring 11 July 2027.
Catchwords:	SENTENCING – Commonwealth offences – Corporations Act offences – Collapse of BitConnect Lending Platform – Financial services advice – Effect of disclaimer stating that financial advice is not financial advice – General deterrence – Purpose of Chapter 7 of the Corporations Act – Strong subjective case – Custodial sentence not warranted – Offender convicted and released on recognisance release order to be of good behaviour for 3 years
Legislation Cited:	Corporations Act 2001 (Cth) s 760A; s 911B(1)(a)‑(e); Crimes Act 1914 (Cth) Part 1B; s 16A; s 16A(1); s 16A(2)(a)-(n); s 20(1)(a) Proceeds of Crime Act 2002 (Cth)
Cases Cited:	Baden v The Queen [2020] NSWCCA 23 Bae v R [2020] NSWCCA 35 Cameron v The Queen (2002) 209 CLR 339 Cameron v The Queen (2002) 209 CLR 339 Commissioner of the Australian Federal Police v Bigatton [2020] NSWSC 245 Decision restricted [2024] NSWCCA 23 DPP v Verdins (2007) 16 VR 268 Huang aka Liu v R [2018] NSWCCA 70 R v Adler [2005] NSWSC 274 R v Bigatton (No 2) [2023] NSWDC 290 R v Bigatton (No 3) [2023] NSWDC 291 R v Bigatton (No 4) [2023] NSWDC 458 R v Cox [2013] QCA 10 R v Katsoulis [2008] VSCA 278 R v Todd [1982] 2 NSWLR 517 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Rex John Louis Anthony Bigatton (Offender)
Representation:	Counsel: A Williams (Crown) C Parkin (Offender) Solicitors: J Cho (CDPP) Kings Law Group (Offender)
File Number(s):	2020/293887
Publication restriction:	Nil