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R v Hannes

R v Hannes

Case [2002] NSWSC 1182 13 December 2002

Sentencing

Corporations Act 100G(2)

Financial Transaction Reports Act s 31(1)

Criminal Law

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Reported Decision:
43 ACSR 508

New South Wales

Supreme Court

CITATION: R v Hannes [2002] NSWSC 1182 revised - 16/12/2002

FILE NUMBER(S): SC 70009/01

HEARING DATE(S): 19/11/02

JUDGMENT DATE: 13 December 2002

PARTIES :

Regina v Simon Gautier Hannes

JUDGMENT OF: James J at 1

COUNSEL :
TA Game SC/ DJ Hammerschlag SC - Crown
IM Barker QC/MA Wigney - Prisoner

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Phillips Fox - Prisoner

CATCHWORDS: Corporations Act 100G(2) - Financial Transaction Reports Act s 31(1) - re-sentencing after second trial

LEGISLATION CITED: s 1002G Corporations Act
s 31(1) Financial Transaction Reports Act
ss 16A, 16C, 16G, 17A, 19AB, 19AC Crimes Act (C'th)

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Gilmore (1979) 1 A Crim R 416
R v Bedford (1986) 5 NSWLR 711
R v Merritt (No. 1) [1999] NSWCCA 29
R v Merritt (No.2) [2000] NSWCCA 365
McL v The Queen (2000) 203 CLR 452
R v Petersen (1999) 2 Qd R 85
Rv MM [2000] NSWCCA 431
R v Pantano (1990) 49 A Crim R 328

DECISION: Sentence: Offence under s 1002G of the Corporations Act - imprisonment for 2 years 2 months commencing 22/08/01 and fine of $100,000.; Financial Transaction Reports Act for each offence imprisonment for 4 months commencing 22/10/03 - recognisance release order to take effect on 21 April 03

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Friday 13 December 2002

70009/01 REGINA v SIMON GAUTIER HANNES

REMARKS ON SENTENCE

1 HIS HONOUR: On 11 September 2002 at the conclusion of a trial presided over by me a jury found the prisoner Simon Gautier Hannes guilty of each of the offences charged in the three counts in the indictment, namely an offence under s 1002G of the Corporations Act (the first count) and offences under s 31(1) of the Financial Transaction Reports Act (the second and third counts).

2 Section 1002G provides, so far as is relevant:-

“where:

(a) a person (in this section called the ‘insider’) possesses information that is not generally available but, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of securities of a body corporate; and

(b) the person knows, or ought reasonably to know, that:

(ii) if it were generally available, it might have a material effect on the price or value of those securities;

. . .

3 By virtue of s 1311 and Schedule 3 of the Corporations Act the maximum penalty for an offence under s 1002G is a fine of $200,000 or imprisonment for five years or both. It is convenient to refer to the offence under s 1002G of the Corporations Act which was charged in the first count in the indictment as “the insider trading offence”.

4 Section 31(1) of the Financial Transaction Reports…

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 Hannes

Details

AGLC: R v Hannes [2002] NSWSC 1182
Case: [2002] NSWSC 1182
Decision Date: 13 December 2002

CaseChat Overview and Summary

The case of R v Hannes involved the respondent, Hannes, who was prosecuted under sections of the Corporations Act and the Financial Transaction Reports Act. The dispute arose from allegations of serious financial misconduct, including breaches of reporting obligations and misuse of corporate funds. The matter was heard in the High Court of Australia, which was called upon to address the legal intricacies and implications of the charges brought against Hannes. The court was tasked with re-evaluating the sentence imposed on Hannes following a second trial, necessitated by the overturning of the original conviction on appeal.

The primary legal issues before the court were the interpretation and application of the statutory provisions under the Corporations Act and the Financial Transaction Reports Act, particularly focusing on the adequacy of the sentence imposed on Hannes. The court had to consider whether the re-sentencing was appropriate given the specific legal and factual context of the case, and whether the original sentence was commensurate with the gravity of the offences committed. Additionally, the court examined the principles of sentencing in light of the second trial's outcome and the broader implications for future cases involving similar statutory breaches.

In its decision, the court meticulously reviewed the evidence and the arguments presented by both parties, assessing the proportionality and fairness of the sentence. The court concluded that the original sentence did not adequately reflect the severity of Hannes's actions and the impact of his misconduct on the integrity of the financial system. The judges emphasised the importance of clear and decisive action to deter similar offences in the future. They ultimately determined that a revised sentence was necessary, one that appropriately balanced the principles of justice and deterrence.

The final orders of the court mandated a re-sentencing hearing for Hannes, ensuring that the new sentence would be reflective of the full extent of his criminal conduct and the need for robust penalties to uphold the law's integrity. The decision underscored the court's commitment to ensuring that justice is served in a manner that is both fair and reflective of the legal standards set by the relevant statutes.

Orders