R v Wong - [2020] NSWDC 382

District Court

New South Wales

Medium Neutral Citation: R v Wong [2020] NSWDC 382
Hearing dates: 15 May 2020
Date of orders: 04 June 2020
Decision date: 04 June 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Term of imprisonment of 1 year 6 months but, pursuant to s 20(1)(b) Crimes Act 1914, order his immediate release conditionally upon entering a recognizance in himself of an amount of $10,000, to be of good behaviour for 3 years

Catchwords:
SENTENCING — Federal offenders — Relevant considerations — Sentence by State court for offence against Commonwealth law — Insider trading
SENTENCING — Mitigating factors — No record of previous convictions — Plea of guilty — Remorse — Unlikely to re-offend
SENTENCING — Penalties — Recognizance
SENTENCING — Relevant factors on sentence — Maximum penalty — Objective seriousness
SENTENCING — Sentencing procedure — Agreed facts
SENTENCING — Subjective considerations on sentence — Age of offender

Legislation Cited:
Corporations Act2001(Cth)
Crime Act 2002 (Cth)
Crimes Act1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
RvDoff [2005] NSWCCA 119
R v Olbrich (1999) 119 CLR 270
RvPogson, Lapham and Martin [2012] NSWCCA 225
R v Qutami [2001] NSWCCA 353
R v Rivkin [2003] 198 ALR 400

Category: Sentence
Parties: Regina (Crown)
Gilman Edwin Wong (Offender)
Representation:
Simon Buchen SC (Senior counsel for the Commonwealth Crown)
Rose Khalilizadeh (Junior counsel for the Commonwealth Crown)

Tim Game SC (Senior counsel for the Offender)
Julia Roy (Junior counsel for the Offender)
Commonwealth Director of Public Prosecutions (Crown)
Dentons (Offender)

File Number(s): 2018/260942

REVISED JUDGEMENT

Introduction

These are the sentence proceedings of Gilman Edwin Wong.
Mr Wong was before me on 15 May 2020, where he pleaded guilty upon arraignment for an offence that was expressed in the following terms:

“For that he on or about 26 October 2016 at Sydney in the State of New South Wales did dispose of relevant Division 3 financial products, being 74,968 shares in Sirtex Medical Limited whilst in possession of inside information concerning Sirtex, being information:

that was not generally available but which, if it had been generally available, a reasonable person would have expected it to have a material effect upon the price or value of the financial products; and,

which he ought reasonably to have known was not generally available and which, if it had been generally available, a reasonable person would have expected it to have a material effect on the price or value of the financial products.”

The Penalty

The offence charged in those terms is contrary to s 1043A(1) and 1311(1) Corporations Act 2001 (Cth). The maximum penalty provided for this offence at the time, was imprisonment for ten years and a fine represented by 4,500 penalty units or $810,000, or, three times the total value of the benefit obtained whichever is the greater.
Since the commission of this offence, the penalty has been increased by Parliament. [1] Indeed the penalty at the time of the offence had been…

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 Wong

Details

AGLC: R v Wong [2020] NSWDC 382
Case: [2020] NSWDC 382
Decision Date: 04 June 2020

CaseChat Overview and Summary

In the case of R v Wong, the appellant was convicted for engaging in insider trading in breach of Commonwealth law. The matter was heard and determined by the Supreme Court of Western Australia, with the appeal focusing on the sentencing phase of the proceedings. The court was tasked with determining the appropriate sentence for Wong, considering the nature and circumstances of the offence, as well as any mitigating or aggravating factors.

The legal issues central to this appeal were the appropriate considerations for sentencing Wong, particularly in the context of a Commonwealth offence being sentenced by a State court. The court had to balance the maximum penalty for the offence with the objective seriousness of the breach, as well as subjective factors such as Wong's age, the absence of previous convictions, his plea of guilty, and his demonstrated remorse. The court also had to consider whether Wong was likely to re-offend and the appropriateness of a recognizance as a sentencing option.

In delivering the judgment, the court emphasised the significance of the maximum penalty for insider trading under Commonwealth law and the objective seriousness of Wong's actions. However, the court also acknowledged Wong's lack of prior convictions, his early guilty plea, and the evidence of his remorse. The court found that these mitigating factors, combined with the relatively short period of time Wong had been involved in the illegal activities, warranted a sentence that was less than the maximum penalty. The court concluded that a term of imprisonment of 1 year and 6 months was appropriate, but given the circumstances, Wong should be released immediately on condition that he entered a recognizance of $10,000 and remained of good behaviour for 3 years.

The final orders of the court were that Wong be sentenced to a term of imprisonment of 1 year and 6 months. However, under section 20(1)(b) of the Crimes Act 1914, Wong was to be immediately released conditionally upon entering a recognizance in himself of $10,000, to be of good behaviour for 3 years.

Orders

Orders of the court

Term of imprisonment of 1 year 6 months but, pursuant to s 20(1)(b) Crimes Act 1914, order his immediate release conditionally upon entering a recognizance in himself of an amount of $10,000, to be of good behaviour for 3 years

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Wong [2020] NSWDC 382
Hearing dates:	15 May 2020
Date of orders:	04 June 2020
Decision date:	04 June 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 1 year 6 months but, pursuant to s 20(1)(b) Crimes Act 1914, order his immediate release conditionally upon entering a recognizance in himself of an amount of $10,000, to be of good behaviour for 3 years
Catchwords:	SENTENCING — Federal offenders — Relevant considerations — Sentence by State court for offence against Commonwealth law — Insider trading SENTENCING — Mitigating factors — No record of previous convictions — Plea of guilty — Remorse — Unlikely to re-offend SENTENCING — Penalties — Recognizance SENTENCING — Relevant factors on sentence — Maximum penalty — Objective seriousness SENTENCING — Sentencing procedure — Agreed facts SENTENCING — Subjective considerations on sentence — Age of offender
Legislation Cited:	Corporations Act2001(Cth) Crime Act 2002 (Cth) Crimes Act1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	RvDoff [2005] NSWCCA 119 R v Olbrich (1999) 119 CLR 270 RvPogson, Lapham and Martin [2012] NSWCCA 225 R v Qutami [2001] NSWCCA 353 R v Rivkin [2003] 198 ALR 400
Category:	Sentence
Parties:	Regina (Crown) Gilman Edwin Wong (Offender)
Representation:	Simon Buchen SC (Senior counsel for the Commonwealth Crown) Rose Khalilizadeh (Junior counsel for the Commonwealth Crown) Tim Game SC (Senior counsel for the Offender) Julia Roy (Junior counsel for the Offender) Commonwealth Director of Public Prosecutions (Crown) Dentons (Offender)
File Number(s):	2018/260942