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R v Richard

R v Richard

Case [2011] NSWSC 866 12 August 2011

Sentencing

Offences contrary to s 1041G(1) and s 1041E(1) of Corporations Act 2001

Rolled up charges

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Regina v Shawn Darrell Richard [2011] NSWSC 866
Hearing dates: 13 May 2011, 22 July 2011
Decision date: 12 August 2011
Before: Garling J
Decision:
(a)On Charge One: I sentence you to a term of imprisonment for two years and six months commencing on 22 July 2011 and concluding on 21 January 2014.
(b)On Charge Two: I sentence you to a term of imprisonment of two years and six months commencing on 22 October 2012 and concluding on 21 April 2015.
(c)I recommend to the prison authorities that you be placed in protection in the special management area within the prison system.
(d) I order that you be released upon entering into a recognizance to be of good behaviour after you have served two years and six months, namely on 21 January 2014.

Catchwords: CRIMINAL LAW - Sentencing - Offences contrary to s 1041G(1) and s 1041E(1) of Corporations Act 2001 - Rolled up charges - Offence losses amounted to $26.6million - Offender received personal payments of over $1.3million - Offender demonstrated contrition - Discount for early plea of guilty - Discount for cooperation with law enforcement agencies - Importance of general deterrence
Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)
Cases Cited: Braun v R [2008] NSWCCA 269
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
Director of Public Prosecutions v Bulfin [1998] 4 VR 114
Higgins v Regina [2006] NSWCCA 38
Hili v The Queen [2010] HCA 45
House v The King (1936) 55 CLR 499
Johnson v The Queen (2004) 78 ALJR 616
Mill v the Queen (1998) 166 CLR 59
Putland v The Queen (2004) 218 CLR 174
R v Boulden [2006] NSWSC 1274
R v Corner (NSWCCA 19 December 1997, unreported)
R v Doff [2005] NSWCCA 119
R v Howard [2003] NSWSC 1248
R v Jones [2004] VSCA 678.
R v Kane [1974] VR 759
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Pantano (1990) 49 A Crim R 328
R v Radich [1954] NZLR 86
R v Rivkin (2003) 198 ALR 400
R v Ruha [2010] QCA 010
R v Rushby (1977) 1 NSWLR 594
R v Williams [2005] NSWSC 315
Regina v Faulkner (1972) 56 Cr.App.R. 594
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Shawn Darrell Richard (Offender)
File Number(s): SC 2010/404507 SC 2010/404508
Publication restriction: Nil

Judgment

For nearly four years between November 2005 and September 2009, whilst a director of Astarra Asset Management Pty Limited, and other companies in the Trio Capital Group, and whilst engaged in the financial services industry, Mr Richard dishonestly operated the business in a way which was designed to, and had the effect of, diverting the staggering large sum of $26.6m which was invested in superannuation funds in Australia, into overseas funds which were located in tax havens in the Caribbean. These overseas funds were of questionable value…

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 Richard

Details

AGLC: R v Richard [2011] NSWSC 866
Case: [2011] NSWSC 866
Decision Date: 12 August 2011

CaseChat Overview and Summary

The case of R v Richard involved the sentencing of an individual for offences under the Corporations Act 2001, specifically sections 1041G(1) and 1041E(1). The offender was found to have committed serious financial crimes resulting in substantial losses amounting to $26.6 million. Despite the significant scale of the offending, the court had to weigh various mitigating factors including the offender’s contrition, early plea of guilty, and cooperation with law enforcement agencies.

The central legal issues before the court were determining the appropriate sentence for these offences, given the significant financial harm caused, and assessing the impact of mitigating factors such as the offender’s remorse, early guilty plea, and cooperation. The court had to balance the need for general deterrence with the individual circumstances of the offender, including the personal payments received by the offender, which amounted to over $1.3 million.

The court recognised the gravity of the financial crimes and the substantial losses incurred by the victims. However, it also considered the mitigating factors presented. The offender’s early guilty plea and cooperation with authorities were noted as significant mitigating factors. The court ultimately decided to impose a sentence that reflected the seriousness of the offences while also acknowledging the mitigating circumstances. The court emphasised the importance of general deterrence in setting the sentence, ensuring that it served to deter similar conduct in the future.

The final orders included a custodial sentence for the offender, with specific consideration given to the factors of contrition, early plea, and cooperation. The court aimed to strike a balance between punishment, deterrence, and rehabilitation, ensuring that the sentence met the objectives of the criminal justice system.

Orders