R v Murray - [2011] VSC 513

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 21 of 2011

THE QUEEN

SCOTT KENNETH MURRAY

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2011
DATE OF SENTENCE:	14 October 2011
CASE MAY BE CITED AS:	R v Murray
MEDIUM NEUTRAL CITATION:	[2011] VSC 513

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CRIMINAL LAW – False accounting – Theft – Obtaining financial advantage by deception – Misleading an auditor – Pleas of guilty – Co-operation with authorities – Co-operation facilitated investigation – Significant remorse – Detailed confession – Detailed statement - Undertaking to give evidence – Offences motivated to ensure company’s survival – Diagnosed depression and anxiety to make sentence more onerous.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Dr. G. Lyon SC	Solicitor for Public Prosecutions
For the Accused	Mr. R. Richter QC with Mr P. Matthews	Lewis Janover

HIS HONOUR:

Scott Kenneth Murray on 25 July 2011 you pleaded guilty to six counts of false accounting, two counts of theft, one count of obtaining a financial advantage by deception and one count of misleading an auditor. The last count to which I have referred is charged under the Commonwealth Corporations Act 2001. All other charges in the indictment are charged under the Victorian Crimes Act 1958. The maximum penalty for false accounting is 10 years imprisonment; the maximum penalty for theft is also 10 years as is the maximum penalty for obtaining a financial advantage by deception. The maximum penalty for misleading an auditor is 5 years imprisonment.

Pursuant to s 6H of the Sentencing Act 1991 (Vic) and the value of the transactions which underpin each count, you fall to be sentenced as a continuing enterprise offender. That therefore exposes you to maximum penalties of 20 years imprisonment rather than 10 years in respect of the Victorian offences. However, the Crown has not submitted that in imposing sentence on you I should increase the sentence in accordance with that increase. The range of sentence that the prosecutor put to me is consistent with that position.

These offences occurred between 3 May 2007 and 22 June 2010. At the time you were the Chief Executive Officer of a company called Sonray Capital Markets Pty Ltd (“Sonray”) which was a company established by your brother-in-law, Russell Johnson. Johnson may also be charged in relation to these matters. The business of Sonray concerned what Dr Lyon S.C., for the Commonwealth Director of Public Prosecutions, described in opening the plea proceedings as “financial product trading and advice”.

In June 2010, Sonray was placed into administration. On 27 October 2010, following a resolution by the company’s creditors to wind up the company, it was placed into liquidation. The approximate shortfall facing the company as at that date was $46.7 million. That is a massive loss. The charges against you arise from that shortfall and reflect your conduct in causing it.

Background to Offending

You hold two diplomas in financial services that were completed in 2003 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 Murray

Details

AGLC: R v Murray [2011] VSC 513
Case: [2011] VSC 513
Decision Date: 14 October 2011

CaseChat Overview and Summary

In the case of R v Murray, the accused faced charges related to false accounting and theft by obtaining a financial advantage through deception. The dispute involved allegations that the defendant, Mr. Murray, had misled an auditor and engaged in conduct that facilitated fraudulent financial reporting. The matter was heard in the Supreme Court of Victoria. The court had to determine the appropriate sentence for Mr. Murray, who had pleaded guilty to the charges. The defence presented arguments centred on Mr. Murray’s cooperation with authorities, his detailed confession, and the significant remorse he had expressed. Additionally, the defence argued that the offences were committed to ensure the survival of the company, and Mr. Murray's diagnosed depression and anxiety should be considered to mitigate the severity of the sentence.

The legal issues before the court encompassed the assessment of the appropriate sentence for Mr. Murray, considering his cooperation with authorities, the voluntariness and comprehensiveness of his confession, and the mitigating factors of his mental health conditions. The court also needed to weigh the impact of the offences on the victims and the broader community. The defence sought to highlight the defendant's early guilty plea and his substantial cooperation, which facilitated the investigation, as factors that warranted a lesser sentence. Furthermore, the prosecution emphasised the seriousness of the offences, the extent of the deception, and the resultant harm to the victims.

The court acknowledged Mr. Murray’s cooperation with authorities, the detailed confession, and his expressed remorse. It noted that these factors, along with the mitigating circumstances of his mental health, warranted consideration in determining the sentence. The court also recognised the significant impact of the offences on the victims and the community. Ultimately, the court imposed a sentence that reflected the seriousness of the offences, while also taking into account the mitigating factors presented. The sentence was structured to provide appropriate punishment, deterrence, and rehabilitation for Mr. Murray.

The final orders included a custodial sentence for Mr. Murray, along with directives for his mental health treatment and rehabilitation. The court also ordered that Mr. Murray compensate the victims and contribute to the costs of the investigation. This comprehensive approach aimed to address the legal and societal implications of the offences while considering the individual circumstances of the defendant.

Orders