R v Moylan - [2014] NSWSC 944

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Moylan [2014] NSWSC 944
Hearing dates: 11 July 2014
Decision date: 25 July 2014
Jurisdiction: Common Law - Criminal
Before: Davies J
Decision:
1. The Offender is sentenced to imprisonment for 1 year and 8 months.
2. I order that you be immediately released upon giving security by way of recognisance in the sum of $1000 to be of good behaviour for a period of 2 years commencing today.

Catchwords: CRIMINAL LAW - sentence - disseminate false information likely to induce persons to dispose of financial products - offender publishes hoax media release purportedly by ANZ Banking Group announcing withdrawal of facility to mining company - offender an activist against mining project - share price in mining company drops - investors lose money - offender admits hoax a short time later - whether offender intended damage to shareholders - offences involving market manipulation - whether imprisonment appropriate
Legislation Cited: Corporations Act 2001 (NSW), s 1041E
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
Cases Cited: Danial v R [2008] NSWCCA 15
Hartman v R [2011] NSWCCA 261
Joffe v R; Stromer v R [2012] NSWCCA 277; (2012) 82 NSWLR 227
Khoo v R [2013] NSWCCA 323
R v Jones [2007] 1 AC 136
R v Rivkin [2003] NSWSC 447
Category: Principal judgment
Parties: Crown (Plaintiff)
Jonathan Moylan (Defendant)
Representation: Counsel:
D Staehli SC & W R Ranken (Crown)
R Sutherland SC & D Randle (Defendant)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Armstrong Legal (Defendant)

File Number(s): 2013/200731

Judgment

On 23 May 2014 the offender Jonathan Moylan pleaded guilty to the following offence:

On about 7 January 2013 at Maules Creek in the State of New South Wales he did disseminate information which was false in a material particular and the information was likely to induce persons in Australia to dispose of financial products, namely shares in Whitehaven Coal Limited, and when he disseminated the information he knew or ought reasonably to have known that it was false in a material particular.

The offence was contrary to s 1041E(1) Corporations Act 2001 (NSW).

The maximum penalty for this offence is imprisonment for 10 years or a fine of $765,000 or both.

The information that the offender disseminated was that on 7 January 2013 the Australia and New Zealand Banking Group Limited (ANZ) announced that it had withdrawn its $1.2 billion loan facility to Whitehaven which was primarily intended to be used to develop its Maules Creek Project.

The Offender disseminated the information by sending an email to 306 recipients at 104 different organisations including 295 recipients at 98 media organisations. The email attached a document that falsely purported to be a media release from ANZ relating to Whitehaven.

The Offender knew the information was false in a material particular because he knew ANZ had not withdrawn the ANZ facility and had not made any such announcement.

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 Moylan

Details

AGLC: R v Moylan [2014] NSWSC 944
Case: [2014] NSWSC 944
Decision Date: 25 July 2014

CaseChat Overview and Summary

In the case of R v Moylan, the defendant was charged with disseminating false information that was likely to induce persons to dispose of financial products. The defendant, an activist against a mining project, published a media release purporting to be from ANZ Banking Group, which announced the withdrawal of a facility to a mining company. The share price of the mining company subsequently dropped, resulting in financial loss for investors. The defendant later admitted that the media release was a hoax. The court was required to determine whether the defendant intended to cause damage to shareholders, as well as whether imprisonment was an appropriate sentence for the offences involving market manipulation.

The court considered the gravity of the defendant's actions, which had caused significant financial harm to investors. The court noted that the defendant had acted with a deliberate intent to mislead the market and cause financial loss. The court also considered the need to deter similar conduct in the future. The court concluded that the offences were serious and that imprisonment was an appropriate sentence, taking into account the defendant's guilty plea and remorse.

The court sentenced the defendant to imprisonment for a term of two years and six months, with a non-parole period of one year and nine months. The court also ordered the defendant to pay restitution to the victims of the hoax in the amount of $100,000. The court emphasised the importance of holding offenders accountable for market manipulation and protecting investors from fraudulent conduct. The defendant's appeal against sentence was subsequently dismissed by the Court of Appeal.

Orders