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 offendingLegislation 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 5Cases 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 4Category: Sentence Parties: Regina
John Falconer (Offender)Representation: Counsel:
Solicitors:
S Callan/A Garsia (Crown)
K C Morgan SC (Offender)
Commonwealth Director of Public Prosecutions (Crown)
Musgrave Legal (Offender)
File Number(s): 2017/269483
Judgment
Introduction
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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).
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- AGLC
- R v Falconer [2018] NSWSC 1765
- Case
- [2018] NSWSC 1765
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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