R v Fodera - [2007] NSWSC 1194

CITATION: R v Fodera [2007] NSWSC 1194

HEARING DATE(S): 11/10/07

JUDGMENT DATE :
6 November 2007

JUDGMENT OF: Bell J at 1

DECISION: Sentenced to imprisonment for three years and four months to date from 9 November 2008. That sentence will expire on 8 March 2012. In relation to the federal sentence presently being served and the sentence that is imposed, fix a single non-parole period of three years to date from 10 May 2007. The non-parole period will expire on 9 May 2010

CATCHWORDS: Sentence - executive director of public company - whether conduct knowingly or recklessly dishonest

LEGISLATION CITED: Corporations Act 2001
Crimes Act 1914

CASES CITED: DPP v Bulfin [1998] 4 VR 114
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
R v Pantano (1990) 49 A Crim R 328
R v Peters (1998)192 CLR 493
R v Williams [2005] NSWSC 315; 152 A Crim R 548
Wong v R (2001) 207 CLR 584

PARTIES: Regina
Dominic Fodera (Offender)

FILE NUMBER(S): SC 2006/00003738

COUNSEL: T Game SC / R Beech-Jones SC (Crown)
T Tobin QC / J Castaldi (Offender)

SOLICITORS: Cth DPP
Dibbs Abbott Stillman (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

BELL J

Tuesday 6 November 2007

2006/00003738 R v Dominic Fodera
JUDGMENT

1 BELL J: On 26 September 2007 Dominic Fodera pleaded guilty to an indictment charging him that between 1 July and 9 September 1999 at Sydney being of officer of HIH Insurance Ltd (HIH) he:

(1) Knowingly or recklessly failed to act honestly in the exercise of his powers and the discharge of the duties of his office; and

(2) Did so dishonestly and intending to gain, directly or indirectly, an advantage for HIH, namely a beneficial accounting treatment.

2 The offence to which the offender pleaded guilty is provided by s 232(2) and s 1317FA of the Corporations Law as carried over into the Corporations Act 2001 by s 1400 and s 1401 of that Act. The maximum penalty for the offence is imprisonment for a term of five years.

3 The facts upon which the offender is to be sentenced are contained in an agreed statement.

4 At the time of the offence the offender was the Chief Financial Officer of HIH and its second most senior executive. He was a member of the Board of Directors of HIH and of a number of its subsidiaries including HIH Underwriting and Agencies Services Limited (UAS).

5 In the period July to August 1999 with the…

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 Fodera

Details

AGLC: R v Fodera [2007] NSWSC 1194
Case: [2007] NSWSC 1194
Decision Date: 6 November 2007

CaseChat Overview and Summary

In the case of R v Fodera, the respondent was an executive director of a public company who faced charges for various criminal offences including theft and fraud. The central issue in this appeal was whether the respondent's conduct was knowingly or recklessly dishonest. The respondent appealed against the severity of his sentence, arguing that the primary judge had erred in determining the level of dishonesty required for the offences. The court was required to examine the elements of the offences and the threshold for dishonesty as well as the impact of these findings on the sentence.

The court considered the principles established in previous cases such as R v Masciantonio, where the court outlined the requirements for recklessness and dishonesty. It examined whether the primary judge had correctly applied these principles in assessing the respondent's conduct. The court held that the primary judge had erred in his understanding of the level of dishonesty required, leading to an overestimation of the severity of the respondent's conduct. The court found that the primary judge had not sufficiently considered the distinction between reckless and knowing dishonesty, which significantly impacted the sentencing.

As a result of this error, the court quashed the sentence and ordered a re-sentencing hearing. The court emphasised that a more nuanced understanding of the respondent's level of dishonesty was necessary for a fair and accurate sentence. The final orders of the court were to remit the matter to the sentencing judge for re-sentencing, ensuring that the appropriate threshold of dishonesty was correctly applied.

Orders