R v Emini and Blumberg

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2011 0030

THE QUEEN
v
LIRIM EMINI

No. S CR 2011 0035

THE QUEEN
v
ANTHONY CHARLES BLUMBERG

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JUDGE:

BEACH J

WHERE HELD:

Melbourne

DATE OF HEARING:

18-19 July 2011

DATE OF SENTENCE:

27 July 2011

CASE MAY BE CITED AS:

R v Emini & Blumberg

MEDIUM NEUTRAL CITATION:

[2011] VSC 336

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CRIMINAL LAW – Sentence – Use position as a director dishonestly with the intention of gaining an advantage – Reckless and failing to exercise powers and discharge duties as a director in good faith in the best interests of a corporation – Plea of guilty – Cooperation with law enforcement agencies – Sentence of 24 months’ imprisonment, to be released on recognisance after serving 12 months – Sentencing Act 1991, s 6AAA – Crimes Act 1914 (Cth), ss 16A and 21E.

CRIMINAL LAW – Sentence – Use position as a director dishonestly with the intention of gaining an advantage – Plea of guilty – Cooperation with law enforcement agencies – Sentence of 12 months’ imprisonment, to be released on recognisance after serving six months – Sentencing Act 1991, s 6AAA – Crimes Act 1914 (Cth), ss 16A and 21E.

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APPEARANCES:

Counsel Solicitors
For the Crown Dr G.J. Lyon SC with
Mr M.J. Gibson
Director of Public Prosecutions (Cth)
For the Accused Lirim Emini Mr R. Richter QC with
Mr H.R. Carmichael
Oakley Thompson & Co
For the Accused Anthony Charles Blumberg Ms J.A. Dixon SC with
Mr H. de Kock
Efron & Associates

HIS HONOUR:

  1. Lirim Emini, you have pleaded guilty to three counts of contravening s 184 of the Corporations Act 2001. Anthony Charles Blumberg, you have pleaded guilty to one count of contravening s 184 of the Corporations Act. The maximum penalty for contravening s 184 of the Corporations Act is five years’ imprisonment and a fine of $220,000.[1]

    [1]See s 1311 and Schedule 3 of the Corporations Act, and s 4AA(1) of the Crimes Act 1914 (Cth).

  1. Mr Emini, the charges to which you have pleaded guilty are as follows:

(a)Charge 1:  In about July 2006, you, being a director of Leveraged Capital Pty Ltd, used your position dishonestly, with the intention of gaining an advantage for Riqueza Holdings Ltd and yourself, by causing a transfer of securities held by Leveraged Capital to Riqueza, namely 23,602,799 units of Bolnisi Gold NL shares and 34,147,750 units of Kings Minerals NL shares.

(b)Charge 2:  Between 7 January 2008 and 21 February 2008, you, being a director of Leveraged Capital, used your position dishonestly with the intention of gaining an advantage for Opes Prime Stockbroking Limited and yourself, by causing a transfer of securities held by Leveraged Capital to Riqueza, of the following:

-4,000,000 units of Coeur D’Alene Mines Corporation shares;

-651,000 units of Goodman Fielder Ltd shares;

-417,291 units of Cudeco Ltd shares;

-10,000,000 units of Kings Minerals NL shares;

-1,415,000 units of Coeur D’Alene Mines Corporation…

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Details
Case
[2011] VSC 336
Decision Date

CaseChat Overview and Summary

In the case of R v Emini and Blumberg, the Federal Court of Australia addressed charges against two individuals for their roles as directors in a corporation. The defendants were convicted of using their positions dishonestly with the intention of gaining an advantage, as well as of recklessness and failing to exercise their powers and discharge their duties as directors in good faith and in the best interests of the corporation. The defendants entered guilty pleas and cooperated with law enforcement agencies, which was considered by the court in determining the appropriate sentences.

The legal issues before the court included the nature and extent of the defendants’ criminal conduct, their culpability, and the principles of sentencing applicable to the circumstances. Specifically, the court had to assess the gravity of the offences, the defendants' culpability, and the factors that could mitigate the sentences under the Sentencing Act 1991 and the Crimes Act 1914. The court needed to balance the deterrent effect of the sentences with the mitigating factors of the guilty pleas and cooperation with authorities.

The court found that the defendants' misuse of their positions as directors was serious, but also acknowledged the mitigating factors of their guilty pleas and cooperation with law enforcement. The court considered these factors in determining the appropriate terms of imprisonment, ultimately deciding on sentences that would reflect the seriousness of the offences while also considering the mitigating circumstances. The defendant Emini was sentenced to 24 months' imprisonment, to be released on recognisance after serving 12 months, while the defendant Blumberg was sentenced to 12 months' imprisonment, to be released on recognisance after serving six months.

Orders

Orders of the court

Mr Blumberg, you are convicted and sentenced to a term of imprisonment of 12 months commencing today.

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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