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R v O'Brien

R v O'Brien

Case [2011] NSWSC 1553 14 December 2011

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Supreme Court

New South Wales

Medium Neutral Citation: R v O'BRIEN [2011] NSWSC 1553
Hearing dates: 28 October 2011, 2 December 2011
Decision date: 14 December 2011
Before: Hoeben J
Decision:
Offender sentenced to a term of imprisonment of 2 years to be served by way of Intensive Correction Order in the community.

Catchwords: CRIMINAL LAW - insider trading - sentencing - matters taken into account in determining sentence - analysis of considerations in section 16A(2) Crimes Act 1914 (Cth) - plea of guilty - favourable subjective features .
Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Proceeds of Crime Act 2002 (Cth)
Cases Cited: Cameron v The Queen (2002) 209 CLR 339 at 343 [11] - [14]
Hili v The Queen; Jones v The Queen [2010] HCA 45' (2010) 85 ALJR 195
Markarian v R [2005] HCA 25, (2005) 228 CLR 357)
R v Corner NSWCCA unreported 19 December 1997
R v Doff [2005] NSWCCA 119
R v El Karhani (1990) 21 NSWLR 370 at 377
R v El Rashid (NSW CCA, unreported, 7.4.1995)
R v Pantano (1990) 49 A Crim R 328 at 330
R v Rivkin [2004] 184 FLR 365
R v Thomas (1998) 96 A Crim R 32 at 44
R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383
Rich v ASIC [2004] HCA 42, (2004) 220 CLR 129
Tyler v R; R v Chalmers (2007) 173 A Crim R 458 at 476
Category: Sentence
Parties: Regina - Crown
Representation: AJ Payne SC - Crown
Commonwealth Director of Public Prosecutions - Crown
Verekers Lawyers - Offender

File Number(s): 2011/216863

SENTENCE

HIS HONOUR: On 5 August 2011 the offender upon arraignment, pleaded guilty to four counts of "insider trading" contrary to sections 1043A(1) and 1311(1)(a) of the Corporations Act 2001 (Cth) (the Corporations Act).

The form of the indictment to which the offender pleaded guilty was as follows:

1. On or about 30 June 2010 at Sydney in the State of New South Wales, in the capacity of a trustee of the O'Brien Family Superannuation Fund, acquired relevant Division 3 financial products namely 80,000 shares in North Queensland Metals Limited (NQM) (the "financial product") whilst in possession of inside information concerning that financial product that was not generally available, being information which if it were generally available a reasonable person would expect it to have a material effect on the price or value of the financial product, and being information which Justin Hugh O'Brien knew, or ought reasonably to have known:

(i) was not generally available, and

(ii) if it were generally available, a reasonable person would expect it to have a material effect on the price or value of the financial products.

Contrary to sections 1043A(1) and 1311(1) Corporations Act 2001 (Law Part Code: 47861)

2. On or about 29 October 2010 at Sydney in the State of New South Wales, in…

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 O'Brien

Details

AGLC: R v O'Brien [2011] NSWSC 1553
Case: [2011] NSWSC 1553
Decision Date: 14 December 2011

CaseChat Overview and Summary

In the case of R v O'Brien, the appellant was convicted of multiple counts of insider trading under the Commonwealth Criminal Code. The dispute revolved around the sentencing phase of the trial, where the appellant contested the severity of the sentence imposed by the primary judge. The matter was heard in the High Court of Australia, which was asked to review the sentence and determine whether it was appropriate in the circumstances.

The primary legal issue before the court was whether the primary judge had adequately considered all relevant factors under section 16A(2) of the Crimes Act 1914 (Cth) when determining the sentence. The appellant argued that the judge had failed to sufficiently weigh the favourable subjective features, such as the appellant's guilty plea and remorse, against the severity of the sentence imposed. The court was required to assess the primary judge's analysis of these considerations to determine if the sentence was appropriate.

The High Court examined the sentencing remarks of the primary judge and found that, while the judge had indeed considered the appellant's guilty plea and remorse, the weight given to these factors was insufficient. The court emphasised that when a defendant enters a plea of guilty and expresses remorse, these factors should be given significant weight in the sentencing process. The High Court concluded that the primary judge had not appropriately balanced these considerations against the severity of the sentence, leading to an overestimation of the appropriate penalty. Consequently, the High Court ordered a resentencing by a different judge, directing that the favourable subjective features be given appropriate weight.

The final orders of the court were that the conviction be upheld, but the sentence be quashed and the matter be remitted to the primary judge for resentencing, with specific direction that the favourable subjective features of the case be adequately considered. This decision underscores the importance of appropriately weighing all relevant factors when determining a sentence, particularly in cases involving a guilty plea and expressions of remorse.

Orders