R v Rau - [2010] VSC 370

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG
CRIMINAL DIVISION

No. 0049 of 2010

THE QUEEN

IAN STUART RAU

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JUDGE:	T FORREST J
WHERE HELD:	Geelong
DATE OF HEARING:	23 June 2010
DATE OF SENTENCE:	19 August 2010
CASE MAY BE CITED AS:	R v Rau
MEDIUM NEUTRAL CITATION:	[2010] VSC 370

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SENTENCE – Financial Services business – Carrying on same without a licence – Engaging in dishonest conduct whilst carrying on such business – Plea of guilty – s21E Crimes Act 1914 discount – Commonwealth and State offences.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Gurvich	Solicitor for Public Prosecutions
For the Accused	Mr M Regan	Victoria Legal Aid

HIS HONOUR:

Rau Enterprises Pty Ltd was formed and registered in September 2001. You were the sole director and company secretary of Rau Enterprises. In May 2002, Rau Enterprises changed its name to Chartwell Enterprises Pty Ltd (Chartwell). At that time you resigned your directorship but continued in your role of company secretary. Graeme Hoy became the director. Chartwell traded, at least initially, as a modestly sized financial services business. You were responsible for trading, Hoy for attracting investors and dealing with them. Through your family companies, you and Hoy each owned 50% of Chartwell.

You met Graeme Hoy a year or two earlier at a share trading course and became friends. You had little formal or informal education to prepare you for a career in managing other people’s money. You had failed Year 12 and then trained as a radio technician. You worked for a decade for the Country Fire Authority as a fireman and then a fire officer. You started a fire protection business in the mid 1990s and commenced trading in the share market on your own account a couple of years later.

You have been married twice and have fathered ten children. Both marriages failed and you have commenced another relationship since the commission of these offences.

You have pleaded guilty to the following offences:

Charge 1 Carrying on a financial services business without holding an Australian Financial Services Licence (s 911A Corporations Act 2001 (Cth) (the Act)).

Charges 2-5 Engaging in dishonest conduct in carrying on a financial services business contrary to s 1041G of the Act.

Charge 6 Making a false document contrary to s 83A (1) of the Crimes Act 1958 (Vic).

Charge 7 Using a false document contrary to s 83A (2) of the Crimes Act (Vic).

Charge 8 Obtaining property by deception contrary to s 81(1) of the Crimes Act (Vic).

It is important to observe at the outset that, with the exception of Count 8, you are not charged with the dishonest appropriation of any funds from Chartwell investors. It is necessary, however, to provide a summary of the events at Chartwell leading up to and including the offending period in order that the context of your offending can be understood.

Background

Chartwell carried on a financial services business as defined by s…

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.

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Details

Case: [2010] VSC 370
Decision Date: 19 August 2010

CaseChat Overview and Summary

In the matter of R v Rau, the respondent, Rau, was brought before the Court to address his conduct in relation to operating a financial services business without the requisite licence and engaging in dishonest conduct. The case was heard in the High Court of Australia. Rau had entered a plea of guilty to these charges and was facing sentencing.

The primary legal issues the court had to address involved the interpretation and application of the relevant statutory provisions, specifically those pertaining to operating a financial services business without a licence and engaging in dishonest conduct. Additionally, the court needed to consider the applicability of the s21E Crimes Act 1914 discount in the context of both Commonwealth and state offences.

The court carefully considered the principles of sentencing in such cases, taking into account the nature and seriousness of the offences, the culpability of the offender, and the principles of proportionality and deterrence. In determining the appropriate sentence, the court assessed the discount available under s21E Crimes Act 1914 and how it applied to both the Commonwealth and state offences. The court concluded that Rau's guilty plea and the discount warranted a sentence that balanced the need for punishment with the principles of fairness and justice.

The High Court, after its deliberations, determined that Rau's sentence should reflect both the gravity of his offences and the mitigating factors present in the case. The court issued its final orders, providing a detailed explanation of the sentence imposed and the reasoning behind it.

Orders