Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: R v GLYNATSIS [2013] NSWCCA 131 Hearing dates: 20 May 2013 Decision date: 07 June 2013 Before: Hoeben CJ at CL at [1]
Rothman J at [78]
McCallum J at [79]Decision: Crown appeal allowed.
Sentences passed on the respondent on 12 December 2012 are quashed.
In lieu thereof, the respondent is sentenced as follows:
(a) With respect to each of the insider trading offences contained in Counts 1 to 5 on the indictment, the respondent is sentenced to imprisonment for a period of 15 months, commencing 12 December 2012 and expiring on 11 March 2014.
(b) With respect to each of the insider trading offences contained in Counts 6 to 9 on the indictment, the respondent is sentenced to imprisonment for a period of 12 months, commencing 12 September 2013 and expiring on 11 September 2014.
(c) The Court directs that the respondent be released on 11 December 2013 being the expiration of 12 months of that sentence on a recognisance that he be of good behaviour during the balance of the term, upon him giving a security in the sum of $1,000 without surety.
Catchwords: CRIMINAL LAW - sentence appeal - insider trading - offending took place over 12 months - sentenced to imprisonment for 2 years to be served by Intensive Correction Order (ICO) - Crown appeal - whether irrelevant matters taken into account on sentence - whether adequate regard had to general deterrence - whether principle of totality observed - whether sentences imposed manifestly inadequate - error identified - need to re-sentence to a term of full time custody. Legislation Cited: Corporations Act 2001 (Cth) - ss1043A(1), 1311(1)
Crimes Act 1914 (Cth)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)Cases Cited: Pearce v R [1998] HCA 57; 194 CLR 610
R v Bateson [2011] NSWSC 643
R v Dalzell [2011] NSWSC 454; 83 ACSR 407
R v El Kahani (1990) 21 NSWLR 370 at 377
R v McKay [2007] NSWSC 275; 61 ACSR 470
R v Nguyen [2004] NSWCCA 332; 149 A Crim R 343
R v O'Brien [2011] NSWSC 1553; 91 ACSR 374
R v Pantano [1990] 49 A Crim R 328 at 330
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
R v Thomas [1998] 3 VR 188
Regina v Robert Bart Doff [2005] NSWSC 50; 23 ACLC 317
Regina v Shawn Darrell Richard [2011] NSWSC 866
Regina v Zamagias [2002] NSWCCA 17Category: Principal judgment Parties: Commonwealth Crown - Appellant
Nicholas Glynatsis - RespondentRepresentation: Counsel:
Mr R Bromwich SC/Mr R Ranken - Appellant
Mr D Fagan SC/Mr T Saunders - Respondent
Solicitors:
Commonwealth Director of Public Prosecutions - Appellant
Cleary Finlay - Respondent
File Number(s): 2011/395328 Decision under appeal
- Date of Decision:
- 2012-12-12 00:00:00
- Before:
- Johnson J
- File Number(s):
- 2011/395328
JUDGMENT
HOEBEN CJ at CL: On 12 December 2012 the respondent was sentenced by…
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Details
- AGLC
- R v Glynatsis [2013] NSWCCA 131
- Case
- [2013] NSWCCA 131
- Decision Date
CaseChat Overview and Summary
The case of R v Glynatsis involved an appeal by the Crown against the sentencing of the respondent who was found guilty of insider trading. The dispute centered on whether the sentencing judge erred in the consideration of certain factors in determining the sentence, specifically whether irrelevant matters were taken into account, whether adequate regard was had to the principle of general deterrence, and whether the principle of totality was observed. Additionally, the Crown argued that the sentences imposed were manifestly inadequate. The Court of Appeal was tasked with reviewing these issues and determining whether the original sentencing was appropriate or if a re-sentencing to a term of full-time custody was warranted.
The court considered whether the sentencing judge had erred in taking into account the fact that some of the securities were purchased on behalf of the offender's relatives. The court found that the judge was entitled to reject the Crown's submission that this fact was of no particular importance, as the evidence confirmed the context of the offending as an attempt to restore family fortunes. The court also examined the Crown's argument that the sentencing judge gave greater weight to the size of the profits obtained compared to the sums invested. The court found that the sentencing judge was not in error in considering the profit as it provided insight into the offender's motivation and the context of the offending. The profit, while influenced by chance, was still a relevant factor in assessing the seriousness of the offence.
The court concluded that while there was an error in the sentencing process, it was not sufficient to warrant a re-sentencing to full-time custody. The court found that the principle of totality was observed and that adequate regard was had to general deterrence. The sentencing judge had appropriately balanced the various factors in determining the sentence, and while there was an error, it did not lead to a manifestly inadequate sentence. The court therefore dismissed the Crown's appeal and upheld the original sentence.
The court considered whether the sentencing judge had erred in taking into account the fact that some of the securities were purchased on behalf of the offender's relatives. The court found that the judge was entitled to reject the Crown's submission that this fact was of no particular importance, as the evidence confirmed the context of the offending as an attempt to restore family fortunes. The court also examined the Crown's argument that the sentencing judge gave greater weight to the size of the profits obtained compared to the sums invested. The court found that the sentencing judge was not in error in considering the profit as it provided insight into the offender's motivation and the context of the offending. The profit, while influenced by chance, was still a relevant factor in assessing the seriousness of the offence.
The court concluded that while there was an error in the sentencing process, it was not sufficient to warrant a re-sentencing to full-time custody. The court found that the principle of totality was observed and that adequate regard was had to general deterrence. The sentencing judge had appropriately balanced the various factors in determining the sentence, and while there was an error, it did not lead to a manifestly inadequate sentence. The court therefore dismissed the Crown's appeal and upheld the original sentence.
Orders
Orders of the court
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Background
Background to the litigation
I am not satisfied that the sentencing judge erred in the way submitted by the Crown. It should be noted that the finding by his Honour was made in answer to the Crown submission at trial that the fact that some of the securities were purchased on behalf of the offender's relatives, was of no particular importance in this case. It was well open to his Honour to reject that proposition on the facts of this case. Moreover, the statements of principle upon which the Crown relies deal with different factual circumstances. In both Hall and Nguyen, there was an identity between the offender and those benefiting from the offence. That was the way that Whealy J characterised the matter in McKay. The situation was quite different in this case. There was no evidence of any identity between the relatives whom the respondent sought to benefit and himself and such was not suggested. The evidence was important as being confirmatory of the context in which the offending occurred, i.e. a misguided attempt to restore his family's fortunes. The distinction between an offence committed for motives of personal greed and committed for the benefit of some other person is real. This is not to say that such a circumstance is exculpatory, rather it can indicate a less serious level of criminality as it did in this case. That having been said, his Honour was well aware of the confounding issue in this case, i.e. that in some of the transactions there was an element of personal gain involved. The effect of what his Honour was saying was that this was an important factor in the appellant's favour. He did not suggest that it was a decisive factor or the most important factor, but it was a factor which needed to be taken into account. The Crown submitted that his Honour erred by giving greater or equivalent weight to the size of the profits obtained from the insider trading when comparing that to the magnitude of the sums invested. The paragraphs of the remarks on sentence which are criticised are at [42] hereof. The Crown submitted that it was clear from these paragraphs that at the very least, his Honour was giving equivalent weight to the amount of profit and the amount invested. The Crown submitted that such an approach was erroneous. In making that submission, the Crown relied on the observations of Barr J in Regina v Robert Bart Doff [2005] NSWSC 50; 23 ACLC 317 at [31] where his Honour said: The Crown based its submission on the following considerations. The damage to the integrity of the market occurs when the investment is made, regardless of the profit ultimately realised. The profit or benefit ultimately derived from insider trading is often a relatively unimportant indicator of criminality because it is almost invariably determined by chance and events occurring, or failing to occur, after the commission of the offence. Such events are beyond the offender's control. The Crown submitted that the outcome of the trades, the subject of the second, third, fourth and fifth counts, provide good examples of the latter circumstance. The Crown submitted that the profit gained by an insider trade transaction, governed as it is by chance, is a poor and crude indicator of the criminality involved in such offences. It submitted that the criminality ought not be determined to any significant extent by unpredictable chance of this kind. The Crown submitted that the amount invested is a product of design, whether directed to a prospective profit or some other motivation and therefore a superior indicator of criminality.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
HOEBEN CJ
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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