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R v Falconer

R v Falconer

Case [2018] NSWSC 1765 16 November 2018

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Supreme Court

New South Wales

Medium Neutral Citation: R v Falconer [2018] NSWSC 1765
Hearing dates: 9 November 2018
Decision date: 16 November 2018
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph [170]

Catchwords:
CRIMINAL LAW – sentence – dishonestly using position as a director to gain benefit – impact on shareholders and investing public – prior good character of limited weight – contrition genuine – plea of guilty at earliest reasonable time – very high objective seriousness – importance of general deterrence
CRIMINAL LAW – parity with co-offender – less serious – smaller amount of money taken – integral to whole offending
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 13, 19
Corporations Act 2001 (Cth), ss 184, 206B, 1307, 1309
Crimes Act 1914 (Cth), Pt 1B, ss 16A, 16F, 17A, 19AB, 19AC, 20, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 5
Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303
Director of Public Prosecutions (DPP) v Bulfin [1998] 4 VR 114
Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152
R v El Rashid (Unreported, NSW Court of Criminal Appeal, 7 April 1995)
R v Hawkins (1989) 45 A Crim R 430
R v Kearns [2003] NSWCCA 367
R v Kennedy [2000] NSWCCA 527
R v Kinch [2016] NSWSC 63
R v Pantano (1990) 49 A Crim R 328
R v Sigalla [2017] NSWSC 52
R v Wilkinson (No 5) [2009] NSWSC 432
Rich v ASIC (2004) 220 CLR 129; [2004] HCA 42
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Category: Sentence
Parties: Regina
John Falconer (Offender)
Representation:
Counsel:
S Callan/A Garsia (Crown)
K C Morgan SC (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Musgrave Legal (Offender)

File Number(s): 2017/269483

Judgment

Introduction

John Falconer (the offender) stands to be sentenced for six offences: five offences contrary to s 184(2) of the Corporations Act 2001 (Cth) (counts 1-5 on the indictment) and one offence contrary to s 1309(1) of the Corporations Act (count 6 on the indictment). The maximum penalty for the s 184 offences is 5 years and/or a fine of 2000 penalty units ($220,000). The maximum penalty for the s 1309 offence is 5 years and/or a fine of 200 penalty units ($22,000). All of the offences were committed when the offender was a director of TZ Limited ACN 073 979 272 (TZ).
Counts…

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 Falconer

Details

AGLC: R v Falconer [2018] NSWSC 1765
Case: [2018] NSWSC 1765
Decision Date: 16 November 2018

CaseChat Overview and Summary

In this case, the respondent, Falconer, was convicted of using his position as a director of a company to dishonestly obtain a benefit. The court was tasked with determining an appropriate sentence for the respondent. The primary legal issues involved assessing the seriousness of the offence, the respondent's culpability, and the need for general deterrence. The court also considered the respondent's plea of guilty and his genuine contrition, as well as his prior good character and the impact of his actions on shareholders and the investing public.

The court found that while the respondent's prior good character was of limited weight, his genuine contrition and plea of guilty at the earliest reasonable opportunity were mitigating factors. The court highlighted the high objective seriousness of the offence, which involved dishonesty and abuse of a position of trust, and the need to protect the investing public. The court also considered the importance of general deterrence in ensuring that others in similar positions did not engage in such conduct. The respondent's role in the offending was less serious than that of his co-offender, and he had taken a smaller amount of money, but he was integral to the overall offending.

After weighing all these factors, the court determined that an appropriate sentence would be one that reflected the high objective seriousness of the offence, the need for general deterrence, and the mitigating factors present in this case. The court imposed a sentence of imprisonment, with specific details regarding the length and conditions of the sentence not provided in the text. The court's decision emphasised the importance of holding individuals accountable for abusing their positions of trust and the need to protect the interests of shareholders and the investing public.

Orders