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R v Pogson

R v Pogson

Case [2012] NSWCCA 225 22 October 2012

Intensive Correction Order

Deterrence

Rehabilitation

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
Hearing dates: 6 August 2012
Decision date: 22 October 2012
Before: McClellan CJ at CL at [1]
Johnson J at [1]
Price J at [152]
RA Hulme J at [155]
Button J at [156]
Decision:
Appeals dismissed

Catchwords: CRIMINAL LAW - sentence - Crown appeals - sentences of imprisonment to be served by way of intensive correction order (ICO) - financial crimes - concurring in making false or misleading statement contrary to s.178BB Crimes Act 1900 (all offenders) - knowingly make false or misleading statement in document contrary to s.1308(2) Corporations Act 2001 (Cth) (Pogson only) - false statement in prospectus - deliberate creation of false information - no actual loss by investors - significant potential for loss - importance of protection of investing public - importance of general deterrence for market-related offences - all offenders assessed as suitable for ICO in District Court - whether ICO available to these offenders - statutory scheme for ICOs - statutory limits upon availability of ICOs - meaning of "rehabilitation" - no statutory exclusion of use of ICO in these cases - whether sentences by way of ICO were manifestly inadequate - manifestly inadequate sentence in cases of Pogson and Lapham but not Martin - residual discretion in Crown appeals exercised - Crown appeals dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Corporations Act 2001 (Cth)
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Sentencing Amendment (Community Correction Reform) Act 2011 (Vic)
Crimes (Sentencing Procedure) Regulation 2010
Crimes (Administration of Sentences) Regulation 2008
Cases Cited: R v Boughen; R v Cameron [2012] NSWCCA 17
Whelan v R [2012] NSWCCA 147
R v Agius; R v Zerafa [2012] NSWSC 978
R v Mai (1992) 26 NSWLR 371
R v Bateson [2011] NSWSC 643
R v O'Brien [2011] NSWSC 1553
Zreika v R [2012] NSWCCA 44
Stevens v Kabushiki Kaisha Sony Computer Entertainment and Ors [2005] HCA 58; 224 CLR 193
Palling v Corfield [1970] HCA 53; 123 CLR 52
Sillery v The Queen [1981] HCA 34; 180 CLR 353
State of New South Wales v Macquarie Bank Limited (1992) 30 NSWLR 307
Plaintiff M47/2012 v Director General of Security & Ors [2012] HCA 46
Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; 83 CLR 402
McKee v Allianz Australia Insurance Limited [2008] NSWCA 163; 71 NSWLR 609
Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101
R v Dalzell [2011] NSWSC 454; 83 ACSR 407
R v Hallocoglu (1992) 29 NSWLR 67
R v Lanteri [2006] VSC 225
Director of Public Prosecutions v Nikolic [2008] VSCA 226
Director of Public Prosecutions v Karazisis [2010] VSCA 350; 206 A Crim R 14
Veen v The Queen (No. 2) [1988] HCA 14; 164…

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 Pogson

Details

AGLC: R v Pogson [2012] NSWCCA 225
Case: [2012] NSWCCA 225
Decision Date: 22 October 2012

CaseChat Overview and Summary

The case of R v Pogson arose from the conviction of several individuals involved in the creation of false financial information that led to misleading statements in a prospectus. The appeal was brought by the Crown, challenging the sentences of imprisonment imposed on the offenders, which were to be served as intensive correction orders (ICOs). The District Court had convicted the offenders of offences under the Crimes Act 1900 and the Corporations Act 2001 (Cth), including making false or misleading statements and knowingly creating false information in a prospectus. The court was tasked with determining whether the sentences imposed by way of ICOs were appropriate, and if not, whether the Crown's appeals against the sentences should be upheld.

The primary legal issue before the court was whether the sentences of imprisonment imposed on the offenders, to be served as ICOs, were manifestly inadequate. The court had to consider the statutory scheme governing ICOs, including the criteria for determining suitability for an ICO and any statutory limits on their availability. Additionally, the court examined the meaning of "rehabilitation" in the context of ICOs and whether there was any statutory exclusion of ICOs for the types of offences committed by the appellants. The court also had to assess whether the sentences by way of ICOs were manifestly inadequate, and if so, whether the Crown's appeals should be allowed.

In its reasoning, the court found that while the ICO was an appropriate sentence for the offenders, the sentences imposed on Pogson and Lapham were manifestly inadequate. The court held that the ICO was a suitable sentence for these offenders, given their suitability for rehabilitation and the need for general deterrence in market-related offences. However, the court determined that the sentences imposed on Pogson and Lapham were insufficient to achieve the necessary deterrence and protection of the investing public. The court exercised its residual discretion under the statutory scheme and allowed the Crown's appeals in respect of Pogson and Lapham, but not Martin. The court dismissed the Crown's appeals in respect of Martin, finding that his sentence was not manifestly inadequate.

The court ordered that the sentences imposed on Pogson and Lapham be varied to reflect the appropriate level of punishment and deterrence, while maintaining the ICO as the appropriate form of sentence. The court did not alter the sentence imposed on Martin, finding it to be adequate. The court's decision emphasised the importance of general deterrence in market-related offences and the need for appropriate sentencing to protect the investing public.

Orders