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R v Dalzell

R v Dalzell

Case [2011] NSWSC 454 20 May 2011

Contract Formation

Unconscionable Conduct

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Supreme Court

New South Wales

Medium Neutral Citation: REGINA v DALZELL [2011] NSWSC 454
Hearing dates: 21 March 2011, 22 March 2011, 7 April 2011, 16 May 2011
Decision date: 20 May 2011
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
The offender is sentenced to a term of imprisonment of 2 years to commence on 20 May 2011 and to expire on 19 May 2013.
Pursuant to s.7(1) of the Crimes (Sentencing Procedure) Act 1999, I make an intensive correction order and direct that the sentence which I now impose be served by way of intensive correction in the community. The conditions of the latter order include the mandatory conditions referred to in s.81 of the Crimes (Administration of Sentences) Act 1999 and Regulation 175 of the Crimes (Administration of Sentences) Regulation 2008 and an additional condition set out in paragraph 169 of these remarks on sentence.

Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2008
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Regulation 2010
Cases Cited: ASIC v Fortescue Metals Group Limited (No 5) [2009] FCA 1586; (2009) 264 ALR 201
DPP v Bulfin (1998) 4 VR 114
DPP (Cth) v El Karhani (1990) 21 NSWLR 370
DPP v O'Reilly [2010] VSC 138
Einfeld v R [2010] NSWCCA 87; (2010) 266 ALR 598
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
R v Doff (2005) ACLC 317; [2005] NSWSC 50
R v Douar [2005] NSWCCA 455; (2005) 159 A Crim R 154
R v Firns (2001) 51 NSWLR 548
R v Hinton (2002) 134 A Crim R 286
R v McQuoid [2009] EWCA Crim 1301
R v Pantano (1990) 49 A Crim R 328
R v Rivkin [2003] NSWSC 447; (2003) 198 ALR 400
R v Rushby (1977) 1 NSWLR 594
R v Williams (2005) 216 ALR 113
Category: Sentence
Parties: REGINA v Andrew DALZELL
Representation: Counsel:
Crown: R Bromwich SC
Offender: N J Williams SC/W Hunt
Solicitors:
Crown: Commonwealth DPP
Offender: Tress Cox Lawyers

File Number(s): 2009/276594

SENTENCE

HALL J:

Introductory remarks

The offender was charged on indictment that on or about 13 November 2006 he committed an offence against the provisions of s.1311(1)(a) of the Corporations Act 2001 (Cth) in that he acted contrary to the provisions of s.1043A of that Act.

Those provisions prohibit conduct by a person in possession of "inside information" as defined in s.1042A of the Act.

The indictment charged the offender of having been in possession of information that was not generally available but which, if it were generally available, a reasonable person would expect it to have a material affect on the price or value of Division 3, Financial Products, namely, securities, being fully paid ordinary shares in a company, Promentum Limited ( "Promentum" ). The indictment further alleged that the offender knew or ought reasonably to have known that such information was not generally available, and…

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 Dalzell

Details

AGLC: R v Dalzell [2011] NSWSC 454
Case: [2011] NSWSC 454
Decision Date: 20 May 2011

CaseChat Overview and Summary

In Regina v Dalzell, the offender, a former senior manager at KPMG Transaction Services, was convicted of insider trading under the Corporations Act 2001 (Cth). The offender had purchased 40,000 shares in Promentum while in possession of confidential information about a potential acquisition of McMillan Print Group. The court had to decide on the appropriate sentence, considering both the objective and subjective circumstances of the case.

The court found the offence to be serious, emphasizing the importance of maintaining market integrity and public confidence. The offender's conduct, though not at the highest level of insider trading, was deliberate and involved a breach of trust. The court highlighted the need for general deterrence, noting that insider trading undermines the market's fairness.

In determining the sentence, the court considered factors such as the nature and circumstances of the offence, the offender's plea of guilty, and the impact on the offender's family. While the offender's subjective circumstances, including his remorse and the personal and professional repercussions of the offence, were acknowledged, they did not mitigate the seriousness of the crime.

The court concluded that a term of imprisonment was necessary to reflect the gravity of the offence and to serve the purposes of punishment and deterrence. An Intensive Correction Order was deemed appropriate, allowing the offender to serve his sentence in the community while still fulfilling the objectives of punishment. The court imposed a two-year term of imprisonment to be served through an Intensive Correction Order, with additional conditions to ensure compliance and prevent further offences.

Orders