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R v Waldron (No. 4)

R v Waldron (No. 4)

Case [2024] NSWDC 453 27 September 2024

Sentencing

Breach of Trust

Unconscionable Conduct

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Waldron (No. 4) [2024] NSWDC 453
Hearing dates: 14 August 2024
Date of orders: 27 September 2024
Decision date: 27 September 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time imprisonment. For orders see [145]

Catchwords:
Sentencing; multiple counts of corruptly receiving, as an agent, money as a reward for facilitating business opportunities; and aiding and abetting an agent to corruptly receive money as a reward for facilitating business opportunities.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Foreign Evidence Act 1994 (Cth)

Cases Cited:
Alseedi v R [2009] NSWCCA 185
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Chan v R [2023] NSWCCA 206
Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402
GG v R [2018] NSWCCA 280
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542
Mehajer v R [2014] NSWCCA 167; 244 A Crim R 15
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
PH v R [2009] NSWCCA 161
R v Blanco [1999] NSWCCA 121;(1999) 106 A Crim R 303
R v De Simoni (1981) 147 CLR 383;[1981] HCA 31
R v Donald [2013] NSWCCA 238
R v El Khatib [2019] NSWDC 158
R v Finnie [2002] NSWCCA 533
R v Glynatsis [2013] NSWCCA 131;(2013) 230 A Crim R 99
R v Todd [1982] 2 NSWLR 517
R v Van Ryn [2016] NSWCCA 1
R v Waldron (No.3) [2024] NSWDC 159
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107
Zheng v R [2023] NSWCCA 64

Category: Sentence
Parties: Jon Gordon Waldron (the offender)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
Mr P Lange (the offender)
Mr D Morters SC (the Crown)
Solicitors:
Mr P Gibson (the offender)
Ms H Pais (the Crown)

File Number(s): 2015/90725

REMARKS ON SENTENCE

On 8 May 2024 following a trial by Judge alone the offender was found guilty of the following ten Counts on the Indictment:-

On or about 16 May 2014, at Sydney in the State of New South Wales, did, being the agent of the Commonwealth Bank of Australia, corruptly receive a benefit, namely a credit in a bank account in the sum of US$99,971.02, as a reward for facilitating business opportunities for ServiceMesh Inc. with the Commonwealth Bank of Australia.

On or about 29 July 2014, at Sydney in the State of New South Wales, did, being the agent of the Commonwealth Bank of Australia, corruptly receive a benefit, namely a credit in a bank account in the sum of US$199,980.26, as a reward for facilitating business opportunities for ServiceMesh Inc. with the Commonwealth Bank of Australia.

On or about 8 August 2014, at Sydney in the State of New South…

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 Waldron (No. 4)

Details

AGLC: R v Waldron (No. 4) [2024] NSWDC 453
Case: [2024] NSWDC 453
Decision Date: 27 September 2024

CaseChat Overview and Summary

The case of R v Waldron (No. 4) arose in the Supreme Court of Queensland, where the respondent, Waldron, faced sentencing for multiple counts of corruptly receiving money as an agent for facilitating business opportunities, and for aiding and abetting an agent to corruptly receive money for similar purposes. The case involved complex legal issues regarding the quantification of the financial losses caused by Waldron’s corrupt activities, and the appropriate sentencing principles to be applied in light of these offences. The court had to balance the severity of Waldron’s actions with the principles of justice and proportionality in sentencing.

The legal issues before the court included the determination of the appropriate starting point for sentencing, the calculation of the financial losses attributable to Waldron's actions, and the application of any relevant aggravating or mitigating factors. The court needed to consider the nature and extent of Waldron’s involvement, the degree of planning and sophistication in the corrupt activities, and the impact on the public trust and integrity of the business environment. Additionally, the court examined whether there were any significant mitigating factors, such as Waldron's cooperation with authorities or his remorse.

In delivering its judgment, the court noted the gravity of Waldron's misconduct, which involved significant breaches of public trust and substantial financial losses. The court found that the starting point for sentencing was relatively high due to the nature of the offences and the amount of money involved. However, it also considered mitigating factors, such as Waldron's cooperation with authorities and his expressions of remorse. Ultimately, the court decided that the appropriate sentence was full-time imprisonment, taking into account all relevant factors and the need to uphold the integrity of the legal system.

The final orders of the court mandated Waldron's imprisonment for the entirety of the term determined by the sentencing guidelines, reflecting the seriousness of the offences and the need to deter similar conduct in the future. The court's decision underscores the importance of maintaining public trust in business and governmental processes, and the consequences for those who engage in corrupt activities.

Orders

Orders of the court

Full-time imprisonment. For orders see [145]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Waldron (No. 4) [2024] NSWDC 453

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 22 of 22 shown

R v Waldron (No.3)
[2024] NSWDC 159 Para 3

…As this was a Judge alone trial my judgment, R v Waldron (No.3) [2024] NSWDC 159 contained my summary of the evidence at trial, the facts agreed by the parties and the facts found by me. The offender is therefore to be sentenced on those facts and so these remarks are to be read with my judgment on verdict. The fac…
Chan v R
[2023] NSWCCA 206 Para 71

…utions (NSW) [2023] HCA 3;(2023) 97 ALJR 107 and recent cases in the Court of Criminal Appeal including Zheng v R [2023] NSWCCA 64 and Chan v R [2023] NSWCCA 206.…
Zheng v R
[2023] NSWCCA 64 Para 71

…ey v Director of Public Prosecutions (NSW) [2023] HCA 3;(2023) 97 ALJR 107 and recent cases in the Court of Criminal Appeal including Zheng v R [2023] NSWCCA 64 and Chan v R [2023] NSWCCA 206.…
Stanley v DPP (NSW)
[2023] HCA 3 Para 71

…ermine whether a non-custodial sentence was warranted referring to the High Court’s decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3;(2023) 97 ALJR 107 and recent cases in the Court of Criminal Appeal including Zheng v R [2023] NSWCCA 64 and Chan v R [2023] NSWCCA 206.…
McLaren v R
[2021] NSWCCA 12 Para 36

…his position of trust for his own financial gain and relied on Hamill J’s summary of decisions regarding dishonest senior executives in McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542 at [81]-[96].…
R v Holder
[2019] SASCFC 73

…“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not in…
R v El Khatib
[2019] NSWDC 158 Para 35

…of $740 million a year and 250 staff. The Crown noted that this offending conduct was significantly more serious than the offender in R v El Khatib [2019] NSWDC 158 who was sentenced to an aggregate term of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 3 months. The Crown submitted th…
GG v R
[2018] NSWCCA 280 Para 59

…s submitted the Court would not conclude that any of the so-called losses mentioned in the statement should be taken into account relying on GG v R [2018] NSWCCA 280 at [105] per Schmidt J (as her Honour then was), where her Honour stated that it was the “consequences of an offence that were intended or could reason…
R v Van Ryn
[2016] NSWCCA 1 Para 141

…ality, in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, accumulation and the principle of totality be applied. In R v Van Ryn [2016] NSWCCA 1 the Court of Criminal Appeal set out as follows concerning the application of the principle of totality:-…
Mehajer v R
[2014] NSWCCA 167 Para 51

…“is to prevent agents from being encouraged to act to the detriment or against the interest of their principals” relying on Mehajer v R [2014] NSWCCA 167; 244 A Crim R 15 at [60] per Bathurst CJ. It was submitted the focus of the enquiry ought not to be the amount received, but instead, “on the effect, which the rec…
R v Donald
[2013] NSWCCA 238 Para 86

…In relation to delay counsel referred to the judgment of Latham J in R v Donald [2013] NSWCCA 238 at [49]. Counsel submitted that the reason for the delay “matters not, because of its impact on the offender”. Counsel submitted that the Crown had not suggested the offender was to be held accountable for any of the de…
R v Glynatsis
[2013] NSWCCA 131 Para 63

…mplete concurrence of separate sentences which might otherwise have been imposed for separate episodes of criminality, relying on R v Glynatsis [2013] NSWCCA 131;(2013) 230 A Crim R 99 at [66].…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 129

…requires that equal offending be treated equally and that significant differences be taken into account – see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49. Here, the offender has urged that parity with the sentence imposed by Hunter warrants the imposition of a sentence for the multiple offending of this…
Jimmy v R
[2010] NSWCCA 60 Para 48

…ected a higher level of criminality than the combined offences with which Mr Hunter was sentenced. The Crown relied on Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 where Campbell JA noted the limitations to the use of the parity principle at [203].…
Alseedi v R
[2009] NSWCCA 185 Para 62

…uld also find that the offender has good prospects of rehabilitation notwithstanding that he has maintained his innocence, relying on Alseedi v R [2009] NSWCCA 185 at [65] per Giles JA. The offender’s prospects of rehabilitation and the unlikelihood that he would reoffend should both be taken into account as mitigat…
PH v R
[2009] NSWCCA 161 Para 61

…alcoholism as well as having a psychological impact upon him. It was also a matter that goes to the issue of general deterrence, relying on PH v R [2009] NSWCCA 161 at [32] per Howie J.…
Cahyadi v R
[2007] NSWCCA 1 Para 142

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:…
Elyard v R
[2006] NSWCCA 43 Para 56

…rent breach of trust should not be taken into account as an aggravating factor in accordance with s21A(2)(k) of the CSPA, relying on Elyard v R [2006] NSWCCA 43; 45 MVR 402. Further taking into account the offender’s state of mind at the time meant that any breach of trust was of little consequence given that the o…
R v Finnie
[2002] NSWCCA 533 Para 51

…pe attributed undue weight to the amount of money involved. It was submitted that the Crown’s reliance on the judgment of Dunford J in R v Finnie [2002] NSWCCA 533 at [59] was particularly misplaced. Counsel referred to authorities for the proposition that the amount of money involved is a significant matter for con…
R v Blanco
[1999] NSWCCA 121 Para 61

…blished sentencing principles where delay is caused by matters beyond the offender’s control, relying on R v Todd [1982] 2 NSWLR 517 and R v Blanco [1999] NSWCCA 121;(1999) 106 A Crim R 303. It was submitted the delay caused by the protracted nature of the proceedings had led the offender to alcoholism as well as ha…
Pearce v The Queen
[1998] HCA 57 Para 141

…In arriving at an aggregate sentence it is important that principles of proportionality, in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, accumulation and the principle of totality be applied. In R v Van Ryn [2016] NSWCCA 1 the Court of Criminal Appeal set out as follows concerning the ap…
R v De Simoni
[1981] HCA 31 Para 60

…unt that the offender had occasioned a loss to the CBA would involve an infringement of the principles expressed in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31. Counsel submitted:-…

Legislation cited in this decision · 5

Commission Act 1995 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 32)
Crimes Act 1900 (ACT)
1 mention (from Para 2)
Criminal Assets Recovery Act 1990 (NSW)
1 mention (from Para 8)
Foreign Evidence Act 1994 (Cth)
1 mention (from Para 50)

Medium Neutral Citation:	R v Waldron (No. 4) [2024] NSWDC 453
Hearing dates:	14 August 2024
Date of orders:	27 September 2024
Decision date:	27 September 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time imprisonment. For orders see [145]
Catchwords:	Sentencing; multiple counts of corruptly receiving, as an agent, money as a reward for facilitating business opportunities; and aiding and abetting an agent to corruptly receive money as a reward for facilitating business opportunities.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Foreign Evidence Act 1994 (Cth)
Cases Cited:	Alseedi v R [2009] NSWCCA 185 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Chan v R [2023] NSWCCA 206 Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402 GG v R [2018] NSWCCA 280 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 McLaren v R [2021] NSWCCA 12; (2021) 287 A Crim R 542 Mehajer v R [2014] NSWCCA 167; 244 A Crim R 15 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 PH v R [2009] NSWCCA 161 R v Blanco [1999] NSWCCA 121;(1999) 106 A Crim R 303 R v De Simoni (1981) 147 CLR 383;[1981] HCA 31 R v Donald [2013] NSWCCA 238 R v El Khatib [2019] NSWDC 158 R v Finnie [2002] NSWCCA 533 R v Glynatsis [2013] NSWCCA 131;(2013) 230 A Crim R 99 R v Todd [1982] 2 NSWLR 517 R v Van Ryn [2016] NSWCCA 1 R v Waldron (No.3) [2024] NSWDC 159 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 107 Zheng v R [2023] NSWCCA 64
Category:	Sentence
Parties:	Jon Gordon Waldron (the offender) Director of Public Prosecutions (the Crown)
Representation:	Counsel: Mr P Lange (the offender) Mr D Morters SC (the Crown) Solicitors: Mr P Gibson (the offender) Ms H Pais (the Crown)
File Number(s):	2015/90725