R v Fellowes; Ex Parte - [2018] QCA 238

[2018] QCA 238

COURT OF APPEAL

FRASER JA
PHILIPPIDES JA
McMURDO JA

CA No 279 of 2017
DC No 1178 of 2017

THE QUEEN Appellant

FELLOWES, Lewis Anthony Respondent

EX PARTE COMMONWEALTH DIRECTOR
OF PUBLIC PROSECUTIONS

BRISBANE

THURSDAY, 27 SEPTEMBER 2018

JUDGMENT

FRASER JA: The respondent pleaded guilty to three counts of dishonest use of position contrary to s 184(2)(a) of the Corporations Act 2001 (Cth). He was convicted and sentenced to 12 months imprisonment on count 1, two years imprisonment on count 2, and three years imprisonment on count 3. It was ordered that he be released forthwith upon entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) by giving security in the sum of $30,000.00 on the condition that he be of good behaviour for a period of five years. The Commonwealth Director of Public Prosecutions has appealed against the sentence on the ground that it is manifestly inadequate. The Director does not contend that the terms of imprisonment are inappropriate but argues that the order for immediate release rendered the sentence manifestly inadequate.

Before the offending the respondent had provided investment advice for about 20 years. He had been a Financial Services Representative for more than six years and he had earlier been a Securities Representative. The respondent worked as a financial adviser with one company during count 1 and with a different company during counts 2 and 3. In committing the offences between July 2008 and July 2010 the respondent dishonestly abused his position of trust as a financial adviser employed by a corporation on five separate occasions in order to advantage himself and his wife.

Count 1 concerned three separate transactions between July and October 2008 in which the respondent dishonestly caused a margin lending company to transfer amounts totalling $170,000 from the margin loan account of clients of the respondent to a margin loan account held by the respondent’s wife. In October 2008 the respondent gave false explanations when his clients asked why the transactions had been made on their account and, after repeated demands, the respondent arranged for repayment with interest of the client funds.

In count 2, in July 2009, the respondent caused the margin lender to transfer $65,000 from the margin loan account of the same clients and also $250,000 and $110,000 from the margin loan account of different clients of the respondent to the respondent’s margin loan account, and then to the account of a company of which the respondent was an alternate director and his parents were the other directors. One of the clients detected the unauthorised transfer and sought to have their account transferred to a new adviser. Another of the clients emailed the respondent to query the transaction and the respondent gave a false explanation for it. In August 2009 the respondent arranged for repayment with interest of the funds belonging to the clients.

In count 3, in July 2009, the respondent caused to be transferred $1 million from an investment…

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 Fellowes; Ex Parte

Details

AGLC: R v Fellowes; Ex Parte [2018] QCA 238
Case: [2018] QCA 238
Decision Date: 27 SEPTEMBER 2018

CaseChat Overview and Summary

The case before the Court of Appeal was an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on Lewis Anthony Fellowes, who had pleaded guilty to three counts of dishonest use of position. The appeal argued that the sentence was manifestly inadequate because it did not include a period of imprisonment before release. Fellowes was sentenced to a total of six years imprisonment, but the sentence was suspended, and he was released immediately on entering into a recognisance. The appeal focused on the absence of a custodial component in the sentence, despite the significant nature of the offences and the substantial amount of money involved.

The legal issue before the court was whether the sentence imposed on Fellowes was manifestly inadequate, given the nature and extent of his offending. The court had to consider the relevant sentencing principles and authorities, particularly those relating to white-collar crime and the need for general deterrence, and weigh the mitigating and aggravating factors in the case.

The court found that while the offences were serious, there were mitigating factors that the sentencing judge had taken into account, such as the early guilty pleas, the repayment of all the stolen funds with interest, the lack of quantifiable loss to the victims, and the respondent's cooperation with the authorities. The court concluded that the sentence, which included a significant period of suspended imprisonment, was not manifestly inadequate and was within the sentencing discretion of the judge. The court emphasised the importance of the discretion afforded to sentencing judges and the need to consider the unique circumstances of each case. The appeal was dismissed, and the original sentence was upheld.

The Court of Appeal, consisting of Fraser JA, Philippides JA, and McMurdo JA, unanimously refused the appeal and dismissed the application for leave to adduce further evidence. The sentence imposed by the original sentencing judge was considered appropriate and not manifestly inadequate.

Orders