R v Donaldson - [2019] NSWDC 85

District Court

New South Wales

Medium Neutral Citation: R v Donaldson [2019] NSWDC 85
Hearing dates: 8, 11 February 2019
Date of orders: 11 February 2019
Decision date: 11 February 2019
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
I sentence you to imprisonment for a period of one year and six months commencing today. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released forthwith upon giving security in the sum of $10,000 to be of good behaviour for a period of two years.

Catchwords: CRIME – SENTENCE – COMMONWEALTH OFFENCE – Using position as employee dishonestly with the intention to gain an advantage for himself – Corporations Act 2001 (Cth) s 184(2)(a) – No evidence of monetary gain by offender or monetary loss by any victim – ASIC had disqualified offender permanently as a foreign exchange trader – Offender and family had suffered substantial losses as a result of offending conduct – Delay of 3.5 years in prosecution of offence
Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)
Cases Cited: DPP (Cth) v Northcote [2014] NSWCCA 26
Kwok v R [2007] NSWCCA 281
R v Donald [2013] NSWCCA 238
R v Gray (Victorian County Court, 6 April 2006)
R v Zerafa [2013] NSWCCA 222
Sabra v R [2015] NSWCCA 38
Scook v R (2018) 185 A Crim R 164
The Queen v Duffy (Victorian County Court 15 June 2005)
The Queen v Fellowes [2018] QCA 238
Category: Sentence
Parties: Regina (Crown)
Andrew David Donaldson (Offender)
Representation:
Counsel:
Mr S Howell (Crown)
Mr S Buchen SC, with Mr D Randle (Offender)
Solicitors:
Solicitors for DPP (Crown)
Armstrong Legal (Offender)

File Number(s): 2018/8375
Publication restriction: Nil

Judgment

HIS HONOUR: Andrew David Donaldson stands for sentence as a consequence to having pleaded guilty to a charge that between 25 July 2013 and 25 June 2014, at Sydney in this State, he did use his position as an employee of Deutsche Australia Limited dishonestly with the intention of directly or indirectly gaining an advantage for himself. That is an offence contrary to s 184(2)(a) of the Corporations Act 2001 (Cth). The maximum penalty for that offence is imprisonment for five years and/or a fine of 2,000 penalty units, which at the time of the commission of the offence in question, amounted to the sum of $340,000.
It is accepted by the Crown in right of the Commonwealth that the offender pleaded guilty to that charge at the earliest available opportunity and he is therefore entitled to have the utilitarian value of that plea taken into account in the assessment of the penalty to be imposed.

Background prior to offending

Normally I would commence my remarks on sentence by describing the offending conduct. However, in this case there are reasons for commencing with part of the background of the offender because it helps to understand the offending conduct.
The offender was born in New Zealand in 1967. He is currently aged 51 years. He attended Auckland Grammar…

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 Donaldson

Details

AGLC: R v Donaldson [2019] NSWDC 85
Case: [2019] NSWDC 85
Decision Date: 11 February 2019

CaseChat Overview and Summary

The case of R v Donaldson involved an offender who was convicted of using their position as an employee dishonestly with the intention to gain an advantage for themselves, in contravention of section 184(2)(a) of the Corporations Act 2001 (Cth). The offender had engaged in dishonest conduct while working in the foreign exchange trading industry, resulting in the Australian Securities and Investments Commission (ASIC) permanently disqualifying them from being a foreign exchange trader. Although no monetary gain was evident for the offender or monetary loss for any victim, the offender's actions caused substantial losses to themselves and their family. The case was prosecuted with a significant delay of 3.5 years, which was noted by the court.

The primary legal issues addressed in the case centred on the appropriate sentencing for the offence, taking into account the offender's conduct, the absence of monetary gain or loss, and the substantial personal and family losses incurred due to the offence. The court also had to consider the delay in prosecution and the offender's rehabilitation efforts. The offender's permanent disqualification by ASIC was also an important factor in the sentencing decision.

The court found that while the offence was serious and warranted punishment, the lack of direct monetary gain or loss and the offender's substantial personal and family losses warranted a lesser sentence. The court also took into account the significant delay in prosecution, which the offender attributed to their ongoing efforts to recover from the financial impact of their actions. The court sentenced the offender to imprisonment for one year and six months, with immediate release on bail pending good behaviour for two years, as per section 20(1)(b) of the Crimes Act 1914 (Cth).

The final orders of the court were to sentence the offender to imprisonment for a period of one year and six months, to be released forthwith upon giving security in the sum of $10,000 to be of good behaviour for a period of two years. The court considered the offender's conduct, the absence of monetary gain or loss, and the substantial personal and family losses incurred due to the offence, as well as the delay in prosecution and the offender's rehabilitation efforts.

Orders

Orders of the court

I sentence you to imprisonment for a period of one year and six months commencing today. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released forthwith upon giving security in the sum of $10,000 to be of good behaviour for a period of two years.

Background

Background to the litigation

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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 Donaldson [2019] NSWDC 85
Hearing dates:	8, 11 February 2019
Date of orders:	11 February 2019
Decision date:	11 February 2019
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I sentence you to imprisonment for a period of one year and six months commencing today. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released forthwith upon giving security in the sum of $10,000 to be of good behaviour for a period of two years.
Catchwords:	CRIME – SENTENCE – COMMONWEALTH OFFENCE – Using position as employee dishonestly with the intention to gain an advantage for himself – Corporations Act 2001 (Cth) s 184(2)(a) – No evidence of monetary gain by offender or monetary loss by any victim – ASIC had disqualified offender permanently as a foreign exchange trader – Offender and family had suffered substantial losses as a result of offending conduct – Delay of 3.5 years in prosecution of offence
Legislation Cited:	Corporations Act 2001 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	DPP (Cth) v Northcote [2014] NSWCCA 26 Kwok v R [2007] NSWCCA 281 R v Donald [2013] NSWCCA 238 R v Gray (Victorian County Court, 6 April 2006) R v Zerafa [2013] NSWCCA 222 Sabra v R [2015] NSWCCA 38 Scook v R (2018) 185 A Crim R 164 The Queen v Duffy (Victorian County Court 15 June 2005) The Queen v Fellowes [2018] QCA 238
Category:	Sentence
Parties:	Regina (Crown) Andrew David Donaldson (Offender)
Representation:	Counsel: Mr S Howell (Crown) Mr S Buchen SC, with Mr D Randle (Offender) Solicitors: Solicitors for DPP (Crown) Armstrong Legal (Offender)
File Number(s):	2018/8375
Publication restriction:	Nil