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R v McKay

R v McKay

Case [2007] NSWSC 275 30 March 2007

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Reported Decision:
61 ACSR 470

New South Wales

Supreme Court

CITATION: Regina v McKay [2007] NSWSC 275

HEARING DATE(S): 16/03/07, 23/03/07

JUDGMENT DATE :
30 March 2007

JUDGMENT OF: Whealy J at 1

DECISION: In relation to count 1, I sentence you to 9 months imprisonment commencing on 13 April 2007 and expiring on 12 January 2008. In relation to count 2, I sentence you to imprisonment for 9 months commencing from 13 April 2007 and expiring on 12 January 2008. In relation to count 3, I sentence you to imprisosnment for 12 months commencing on 13 July 2007 and expiring on 12 July 2008. I decline to make a Recognizance Release Order. Each of the sentences is to be served by way of periodic detention. I direct that the offender attend the Norma Parker Periodic Detention Centre, or such other Centre she may be directed to attend by 4pm on Friday 13 April 2007 to commence serving her periodic detention.

LEGISLATION CITED: Corporations Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1914 (Cth)
Proceeds of Crimes Act 2002

CASES CITED: R v Holt No. 2 [2005] NSWSC 890 at para (86)
R v Rivkin [2004] NSWCCA 7 at (414)
R v Doff [2005] NSWCCA 50 at (29).
R v Rivkin [2004] 59 NSWLR 284
R v Frawley [2006] NSWSC 585
R v Pantano (1990) 49 A Crim R 328
R v El Rashid (unreported Court of Criminal Appeal 7 April 1995)
R v Otto [2005] 157 A Crim R 525
Cameron v The Queen [2002] 209 CLR 339 at [13-14]
R v Thomson & Houlton [2000] 49 NSWLR 383
R v Bugeja [2001] NSWCCA 196 per Hodgson JA
R v Simon [2003] 142 A Crim R 166
R v N P [2003] NSWCCA 195 at 25-27
R v Zamagias[2002] NSWCCA 17 at paras 29 to 32
R v Boulden [2006] NSWSC 1274 at para 51 per Whealy J
L (unreported NSWCCA 17 June 1996

PARTIES: Regina v Magot Olive McKay

FILE NUMBER(S): SC 2006/2704

COUNSEL: Mr T. Game SC - Commonwealth Crown
Mr J. de Mestre (Sol) - Offender

SOLICITORS: Commonwealth DPP - Crown
John de Mestre & Co - Offender

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

WHEALY J

FRIDAY 30 March 2007

2006/2704 - REGINA v Margot Olive McKAY

SENTENCE

1 HIS HONOUR: Margot Olive McKay (“the offender”) pleaded guilty before me at an arraignment hearing on 2 February 2007 to three counts in an indictment. The three counts relate to insider-trading offences under ss 1043A(1) and 1311(1)(a) of the Corporations Act 2001 (“the Act”).

2 The first count asserted that the offender procured her mother Cecelia Agnes McKay to acquire 8,000 ordinary shares in Aristocrat Leisure Limited. The second count asserts that the offender procured her son Nicholas Peter McKay to acquire 8,000 shares in Aristocrat Leisure Limited. The third and final count asserts that she procured her mother, her son and a friend (Jennifer Holt) to acquire 7,650…

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 McKay

Details

AGLC: R v McKay [2007] NSWSC 275
Case: [2007] NSWSC 275
Decision Date: 30 March 2007

CaseChat Overview and Summary

The case of Regina v McKay was heard before Whealy J in the Supreme Court of New South Wales. The defendant, Margot Olive McKay, was found guilty of insider trading in relation to shares in Aristocrat Leisure Limited. McKay was convicted on three counts of insider trading under sections 1043A(1) and 1311(1)(a) of the Corporations Act 2001. The key legal issues considered by the court were the objective criminality of the offences, the importance of general deterrence, and the appropriate sentence to be imposed. The court found that the offences were objectively serious, involving deliberate breaches of insider trading provisions. The court also considered the subjective circumstances of the offender, including her health, remorse, and early plea, which were significant mitigating factors. The court concluded that a custodial sentence was necessary for general deterrence, but that the sentence should also reflect the offender's rehabilitation and health conditions. After considering all relevant factors, the court sentenced McKay to three fixed terms of imprisonment to be served by way of periodic detention, totalling 15 months. The court rejected the argument that McKay was unsuitable for periodic detention based on her health conditions, finding that there was no evidence to suggest she would be at serious risk in such a facility. The court emphasised that the sentence was intended to send a strong message of deterrence to the business and share trading community.

Orders