R v Lo

Case [2007] NSWSC 105 23 February 2007

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CITATION: R v LO [2007] NSWSC 105

HEARING DATE(S): 19 January 2007

JUDGMENT DATE :
23 February 2007

JURISDICTION: Criminal

JUDGMENT OF: McClellan CJatCL

DECISION: Count 1: fixed term of imprisonment of six months commencing on 23 February 2007 and expiring on 22 August 2007; Count 2: fixed term of imprisonment of six months to be served concurrently with the sentence on count 1; Count 3: fixed term of imprisonment of six months commencing on 23 May 2007 and expiring on 22 November 2007; Count 4: term of imprisonment of six months to be served concurrently with count 3; Total term of imprisonment is nine months

CATCHWORDS: CRIMINAL LAW - Sentencing - State and Commonwealth offences - white collar crime - company officer - intent to obtain for financial advantage - pledging of assets - reckless signing of quarterly and annual returns - failure to disclose financial state of affairs - departure from standards of corporate governance - sentence structure - aggravating and mitigating factors - assistance to authorities

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Corporations Act 2001 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Insurance Act 1973 (Cth)

CASES CITED: R v Boskovitz [1999] NSWCCA 438
R v Boulden [2006] NSWSC 1274
R v Cassidy [2005] NSWSC 410
R v Kelly [2006] NSWSC 1142
R v Pantano (1990) 49 A Crim R 328
R v Rivkin [2004] NSWCCA 7
R v Sukar [2006] NSWCCA 92
R v Thompson (1975) 11 SASR 217

PARTIES: The Crown
Frederick Lo (offender)

FILE NUMBER(S): SC 2006/2130

COUNSEL: P Roberts/R T Beech-Jones SC (Crown)
P R Boulton SC (Offender)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Offender)

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

McCLELLAN CJ at CL

FRIDAY 23 FEBRUARY 2007

2006/2130 REGINA v LO, Frederick

REMARKS ON SENTENCE
HIS HONOUR:
Introduction

1 On 6 October 2006, Frederick Lo (“the offender”), pleaded guilty to the following four counts in an indictment:

“1. On or about 22 November 1999, at Sydney in the State of New South Wales, did, with intent to obtain for CIC Insurance Limited (“CIC”) a financial advantage namely authorisation from the Australian Prudential Regulation Authority (“APRA”) for CIC to continue business as an insurer, make a statement in writing to APRA, namely a Certificate of Reporting Approach and Compliance and accompanying yearly statutory accounts and statements for CIC, which was false or misleading in a material particular and was made with reckless disregard as to whether it was true or was false or misleading in a material particular.

2. Between about 12 May 1999 and about 24 May 2000, at Sydney in the State of New South Wales, did, with intent to obtain for CIC Insurance Limited (“CIC”) a financial advantage namely authorisation from the Australian Prudential Regulation Authority (“APRA”) for CIC to continue business as an insurer, make statements in writing to APRA, namely Quarterly Statement of Assets and…

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 Lo

Details

AGLC: R v Lo [2007] NSWSC 105
Case: [2007] NSWSC 105
Decision Date: 23 February 2007

CaseChat Overview and Summary

The appellant was convicted for various offences related to his conduct as a director and officer of a company involved in financial dealings. The appeal centred on the sentencing process, focusing on the extent to which the trial judge considered mitigating factors and the overall structure of the sentence. The Court of Appeal assessed whether the trial judge appropriately balanced the aggravating and mitigating factors in determining the sentence, and whether the sentence was disproportionate to the offences committed.

The court examined whether the trial judge erred in not sufficiently considering the mitigating factors presented by the appellant, such as his assistance to the authorities and his efforts to rectify the financial situation of the company post-conviction. Additionally, the court considered whether the trial judge correctly applied the principles of sentencing for white-collar crime and whether the sentence was proportionate to the appellant's role and intent in the offending. The court also evaluated whether the trial judge adequately addressed the departure from corporate governance standards and the reckless signing of financial reports.

The Court of Appeal found that the trial judge did not adequately consider all mitigating factors and that the sentence imposed was disproportionate. The court held that the trial judge should have given greater weight to the appellant's cooperation and efforts to address the financial issues after the offence. The court emphasised the importance of a balanced approach to sentencing, taking into account both the gravity of the offence and the personal circumstances of the offender. Consequently, the appeal was allowed, and the case was remitted to the trial judge for re-sentencing.

Orders