R v Doff

Case [2005] NSWSC 50 11 February 2005

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Reported Decision:
(2005) 23 ACLC 317

New South Wales

Supreme Court

CITATION:
Regina v Robert Bart Doff [2005] NSWSC 50

HEARING DATE(S): 8 November 2004 - 19 November 2004, 17 December 2004, 11 February 2005

JUDGMENT DATE :

11 February 2005

JUDGMENT OF:
Barr J at 1

DECISION:
Offender sentenced to serve 350 hours' community service work and fined $30,000.00.

PARTIES:
Regina, Robert Bart Doff

FILE NUMBER(S):
SC 2002/100

COUNSEL:
P Byrne SC
R J H Maidment SC and P R McGuire

SOLICITORS:
S Kavanagh
John De Mestre & Co

LOWER COURT JURISDICTION:

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR

11 FEBRUARY 2005

2002/100 REGINA V ROBERT BART DOFF

SENTENCE

1 HIS HONOUR: The offender was found guilty by a jury of an offence under s1002G Corporations Act 2001 known as Insider Trading. The maximum penalty is a fine of $200,000 or imprisonment for five years or both.

2 These are the facts. Mr Gerard McGowan was Chief Executive Officer of Impulse Airlines. During the first few months of 2001 there was intense competition between Australian domestic airlines, particularly for business on the trunk routes in eastern Australia. The competition had been created in part by the entry into the industry of Impulse Airlines, which had previously been a charter and freight operator. There were four airlines competing for business, namely Qantas, Ansett, Virgin and Impulse. Seats were being sold at uneconomically low rates and the general feeling in the industry was that this state of affairs was unlikely to last much longer. At least one airline was likely to fail. The only prediction that anyone would make with any confidence was that it would not be Qantas.

3 Impulse was losing money at a rate which concerned Mr McGowan and those who advised him and financed Impulse’s operations. Mr McGowan held meetings with the representatives of institutional investors, hoping to persuade them to invest a further $50 million. It was apparent to him that the provision of the additional money was not a foregone conclusion. One of the investors was expressing some reluctance and the attitude of that investor was likely to affect the others, so Mr McGowan entered into simultaneous negotiations with representatives of Qantas, intending, if the efforts to obtain further finance should fail, to solve Impulse’s problems another way. Mr McGowan believed that if Impulse could not solve its problems by one means or the other it would fail.

4 Ultimately the efforts to obtain further finance failed and the negotiations with Qantas were successful. On 1 May 2001 a joint announcement was made that the two airlines had entered into a long-term commercial relationship that would involve Impulse’s supplying Qantas with aircraft and crew and operating certain services for Qantas. Qantas was to lend money to pay out Impulse’s investors and Impulse was to withdraw from operating scheduled air services in Australia under its own brand.

5 The agreement was subject to approval by 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 Doff

Details

AGLC: R v Doff [2005] NSWSC 50
Case: [2005] NSWSC 50
Decision Date: 11 February 2005

CaseChat Overview and Summary

The case of Regina v Robert Bart Doff involved a dispute concerning insider trading under the Corporations Act 2001. The defendant, Robert Bart Doff, was found guilty of insider trading by the jury. The legal issues the court had to decide revolved around whether the defendant had committed the offence of insider trading as charged, which involved procuring Jetoten Pty Limited to purchase Qantas shares while in possession of confidential information not generally available that could affect the price of the securities.

The court's reasoning focused on the elements of the offence, particularly the confidential nature of the information and the defendant's knowledge of its significance. The jury's verdict confirmed that the defendant understood the confidential information regarding the merger deal between Impulse Airlines and Qantas and its implications on Qantas shares. The court noted that the defendant acted swiftly to purchase more shares within hours of hearing the information, indicating his awareness of its potential impact. The court also considered the disparity in sentencing between the defendant and another co-offender, Rene Rivkin, and determined that while the offences were similar, the defendant's criminality was less severe given his lesser involvement and speculative knowledge.

Ultimately, the court sentenced Robert Bart Doff to serve 350 hours of community service and imposed a fine of $30,000. The court considered factors such as the defendant's breach of trust, his otherwise good character, and the delay in the proceedings before imposing the sentence. The court rejected the submission for a custodial sentence, finding it disproportionate given the defendant's lesser role and the favourable personal attributes compared to the co-offender.

Orders