R v Johnson - [2014] VSC 175

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2012 0093

THE QUEEN

RUSSELL ANDREW JOHNSON

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 December 2013.
DATE OF SENTENCE:	17 April 2014
CASE MAY BE CITED AS:	R v Johnson
MEDIUM NEUTRAL CITATION:	[2014] VSC 175

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SENTENCING – counts of theft, false accounting and obtaining property by deception contrary to ss 74, 82 and 83(1) Crimes Act 1958 (Vic) – count of submitting a false document to ASIC contrary to s1308(2) Corporations Act 2001 (Cth) – ‘white collar crime’ – whether family hardship amounts to an exceptional circumstance – parity with sentence imposed on co-offender – plea of guilty – total effective sentence of 6 ½ years’ imprisonment with non-parole period of 3 ½ years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	M Gibson	Commonwealth Director of Public Prosecutions
For the Accused	M Cahill	Spicer Lawyers.

HIS HONOUR:

Introduction

Russell Andrew Johnson, on 9 October 2013 you pleaded guilty to three counts of false accounting,[1] two counts of theft,[2] one count of obtaining financial advantage by deception,[3] and one count of submitting a false document to the Australian Securities and Investments Commission (ASIC).[4] Other than the last mentioned count, which is charged under the Commonwealth Corporations Act 2001, all other counts are charged under the Victorian Crimes Act 1958.
[1]Contrary to s 83(1)(a) of the Crimes Act 1958 (Vic).
[2]Contrary to s 74 of the Crimes Act 1958.
[3]Contrary to s 82 of the Crimes Act 1958.
[4]Contrary to s 1308(2) of the Corporations Act 2001 (Cth).

The maximum penalty for false accounting is 10 years’ imprisonment; the maximum penalties for theft and for obtaining financial advantage by deception are also 10 years’ imprisonment. The maximum penalty for the offence charged under the Corporations Act is five years’ imprisonment or 200 penalty units.

Two of the false accounting counts and the two theft counts (ie. charges 1, 2, 4 and 5), each involve at least one transaction of property with a value of $50,000 or more. In those circumstances s 6H of the Sentencing Act 1991 applies so that you fall to be sentenced as a continuing criminal enterprise offender in respect of those counts, potentially liable to twice the maximum prescribed penalty: 20 years’ imprisonment rather than 10 years’ imprisonment.[5] In your case, however, the Crown has not submitted that in sentencing you I should increase your sentence commensurately by that factor.
[5]Section 6H and 6I and Schedule 1A Sentencing Act 1991.

The counts to which you have pleaded guilty arise out of your role as the sole director of Sonray Capital Markets Pty Ltd (Sonray), now in liquidation. Your offences occurred in a period spanning two and a half years, from 6 December 2007 to 22 June 2010.

Sonray was established by you in April 2003. It operated as a non-market ‑ participant securities broker/adviser offering a range of financial…

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 Johnson

Details

AGLC: R v Johnson [2014] VSC 175
Case: [2014] VSC 175
Decision Date: 17 April 2014

CaseChat Overview and Summary

In the matter of R v Johnson, the defendant was convicted of various counts of theft, false accounting, and obtaining property by deception, as well as submitting a false document to the Australian Securities and Investments Commission (ASIC). The case was heard and determined by the Victorian Court of Appeal. The defendant appealed against the sentence imposed by the County Court of Victoria, arguing that the sentence was excessive and did not adequately account for the exceptional circumstances of family hardship.

The central legal issue before the court was whether the appellant’s family hardship constituted an exceptional circumstance that warranted a lesser sentence, and whether the sentence imposed was disproportionate when compared to the sentence given to a co-offender. The appellant argued that the trial judge did not sufficiently consider the impact of the proposed sentence on his family, particularly his young children. Furthermore, the appellant contended that the sentence was excessive and did not achieve the purposes of punishment, deterrence, and rehabilitation.

The Court of Appeal held that while the appellant’s family hardship was a relevant consideration, it did not amount to an exceptional circumstance that would warrant a significantly reduced sentence. The court found that the trial judge had appropriately balanced the various sentencing considerations, including the nature and circumstances of the offending, the appellant’s culpability, and the need for deterrence. The court also noted that the sentence was proportionate when compared to the sentence imposed on the co-offender, taking into account the different roles and levels of involvement in the offending. The appeal was thus dismissed, and the original sentence of 6 ½ years’ imprisonment with a non-parole period of 3 ½ years was upheld.

Orders