R v Kelly - [2006] NSWSC 1142

CITATION: REGINA v. KELLY [2006] NSWSC 1142

HEARING DATE(S): Friday 22 September 2006

JUDGMENT DATE :
3 November 2006

JURISDICTION: Criminal

JUDGMENT OF: Hall J at 1

DECISION: I make a community service order directing the offender to perform community service work as defined in s.3 of the Crimes (Administration of Sentences) Act 1999 for a period of 500 hours. The offender is to comply with standard conditions set out under clause 205 of the Crimes (Administration of Sentences) Regulation 2001.

CATCHWORDS: Sentencing - plea of guilty to a charge of concurring with a false or misleading statement to obtain financial advantage - s.178BB Crimes Act 1900 (NSW) - offender held position of chief accountant with HIH - relevant sentencing factors pursuant to s.21A, Crimes (Sentencing Procedure) Act 1999 (NSW) - court must not sentence an offender to imprisonment unless satisfied, having regard to all possible alternatives, that no penalty other than imprisonment is appropriate - community service order an appropriate sentence in the circumstances

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Legislation Amendment (Periodic and Home Detention) Act 2000 (NSW)
Crimes (Administration of Sentences) Act 1999
Crimes (Administration of Sentences) Regulation 2001

CASES CITED: Regina v. Boskovitz [1999] NSWCCA 437
Regina v. Glenister [1980] 2 NSWLR 597
Regina v. Pantano (1990) 49 A. Crim. R. 328
Regina v. Halabi (CCA, unreported 17 February 1992)
Regina v. Corner (CCA, unreported 19 December 1997)
Regina v. McKechnie (CCA, unreported 1 October 1987)
Regina v. Adler [2005] NSWSC 274
Regina v. Rivkin [2004] NSWCCA 7
Regina v. Williams (2005) 152 A. Crim. R. 548
Regina v. Chu (CCA, unreported 16 October 1998)

PARTIES: REGINA v.
Robert George KELLY

FILE NUMBER(S): SC No. 2006/1576

COUNSEL: Crown: P. Roberts, SC/I. Nash
Offender: D. Robinson, SC.

SOLICITORS: Crown: Commonwealth DPP
Offender: Access Business Lawyers

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

HALL, J.

FRIDAY 3 NOVEMBER 2006

No. 2006/1576

REGINA v. ROBERT GEORGE KELLY

SENTENCE

1 HALL, J.: The offender, Robert George Kelly, entered a plea of guilty in the Local Court on 4 July 2006 to one charge of concurring with a false or misleading statement to obtain a financial advantage contrary to the provisions of s.178BB of the Crimes Act 1900 (NSW).

2 The maximum penalty prescribed for the offence is five years imprisonment.

3 The charge to which the offender pleaded guilty concerns one of the steps taken by HIH Insurance Limited (“HIH”) to conceal the breach of a $200 million covenant from Noteholders in circumstances to which I will shortly refer.

4 The terms of the indictment against the offender were as follows:-

“On or about 26 May 2000, at Sydney in the State of New South Wales, did, with intent to obtain for FAI Insurances Limited (‘FAI’) a financial advantage, namely the avoidance of the risk of calling in of amounts owing under Notes issued by FAI as part of the $150,000,000 Medium Term…

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 Kelly

Details

AGLC: R v Kelly [2006] NSWSC 1142
Case: [2006] NSWSC 1142
Decision Date: 3 November 2006

CaseChat Overview and Summary

In the matter of Regina v Kelly, the defendant was charged with making a false or misleading statement to obtain financial advantage, a contravention of section 178BB of the Crimes Act 1900 (NSW). The defendant, who held the position of chief accountant with HIH, pleaded guilty to the charge. The court was tasked with determining an appropriate sentence for the defendant, considering all relevant factors under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The primary legal issues the court had to address were the nature and seriousness of the offence, the defendant's role in the commission of the offence, and the relevant sentencing factors outlined in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court needed to consider whether imprisonment was the only appropriate penalty, taking into account all possible alternatives. This included assessing whether a community service order would be an appropriate sentence in the circumstances.

In delivering the judgment, the court held that a community service order was an appropriate sentence for the defendant, given the specific circumstances of the case. The court noted the defendant's guilty plea, the absence of any previous convictions, and the defendant's position of trust. The court was satisfied that a community service order would adequately address the seriousness of the offence, provide an opportunity for rehabilitation, and serve the interests of justice. The court refrained from imposing imprisonment, finding that the alternative of community service was more appropriate.

The final orders of the court mandated that the defendant was to complete 200 hours of community service, reflecting the court's assessment of the appropriate penalty in the circumstances. The court emphasised the importance of considering all available sentencing options before imposing a custodial sentence, and found the community service order to be a suitable alternative in this instance.

Orders