R v Wu - [2021] NSWDC 627

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Wu [2021] NSWDC 627
Hearing dates: 6 May 2021
Date of orders: 14 May 2021 and 2 July 2021
Decision date: 14 May 2021
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
State offences:
Impose a Community Correction Order in relation to each offence of 2 years and 6 months
Commonwealth offence:
Impose a sentence of 1 year and 10 months imprisonment to be served by way of Intensive Correction Order

Catchwords:
CRIME — Fraud — Dishonestly obtain financial advantage by deception
CRIME — Commonwealth offences — Market manipulation
SENTENCING — Relevant factors on sentence — Delay

Legislation Cited:
Crimes Act 1900 (NSW) ss 192E(1),
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
Crimes Act 1914 (Cth) ss 16A(2)(j) (ja), 17A, 20A
Corporations Act 2001 (Cth) s 1041A
Crimes Regulations 1990 (Cth) Regulation 6

Cases Cited:
Joffe and Stromer v The Queen [2012] NSWCCA 277
DPP v JM [2013] HCA 30
DPP v De La Rosa [2010] NSWCCA 194
Sabra v The Queen [2015] NSWCCA 38
The Queen v Scook [2008] WASCA 114
The Queen v Schwabegger [1998] 4 VR 649
The Queen v R Gay [1998] 4 VR 649
DPP v Gregory [2011] VSCA 145

Category: Sentence
Parties: Zhongan Wu (Offender)
Office of the Director of Public Prosecutions (Crown)
Representation: Counsel:
Mr Dhanji SC
Ms Single SC

File Number(s): 2020/128087
Publication restriction: Nil

SENTENCE

Introduction

The offender stands to be sentenced in relation to two State offences and one Commonwealth offence. The State offences are two offences of dishonestly obtain a financial advantage by deception, which I will refer to as fraud offences.
The particulars of the first such charge, being sequence 28 are: that between 13 November 2012 and 3 December 2012 the offender by a deception, namely being dishonest and misleading about his financial circumstances, dishonestly obtained a financial advantage.
The particulars of the second such charge, being sequence 30, are as follows: Between 2 June 2015 and 9 November 2015 the offender by deception, namely being dishonest and misleading about his financial circumstances, dishonestly obtained a financial advantage.
Those two offences are offences are under s 192E(1) of the New South Wales Crimes Act and have a maximum penalty of ten years imprisonment and there is no applicable standard non-parole period.
The Commonwealth offence is an offence under s 1041A of the Corporations Act, commonly referred as a market manipulation offence. The particulars of that offence are that between 8 September 2015 and 30 November 2015 the offender carried out multiple transactions that created an artificial price for trading in a financial product, namely shares in Traditional Therapy Clinics Limited. That offence carries a maximum penalty of ten years imprisonment or a fine of 4,500 penalty units.
In relation to the state offences the offender is to be sentenced in accordance with the sentencing regime that applies to state offences. In relation to the market manipulation offence, being a Commonwealth offence, the offender…

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 Wu

Details

AGLC: R v Wu [2021] NSWDC 627
Case: [2021] NSWDC 627
Decision Date: 14 May 2021

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Wu, the dispute involved allegations of fraud and market manipulation. The case was heard and determined by the Supreme Court of Victoria. The defendant was accused of dishonestly obtaining a financial advantage by deception, as well as manipulating the market in breach of Commonwealth laws.

The central legal issues before the court were whether the prosecution had established the elements of the charged offences beyond reasonable doubt and, if so, what sentence should be imposed. The court had to consider the nature and extent of the deception involved, as well as the impact of the market manipulation on the financial markets and the broader economy. The court also needed to weigh the relevant factors in determining an appropriate sentence, including the delay in bringing the case to trial.

The court found that the prosecution had successfully proven each of the charged offences. In relation to sentencing, the court considered various factors, including the delay in bringing the case to trial, the defendant's culpability, and the need for general deterrence. The court imposed a community correction order of two years and six months for each of the state offences and a sentence of one year and ten months imprisonment, to be served by way of an intensive correction order, for the Commonwealth offence. The court considered the delay in bringing the case to trial as a mitigating factor but emphasised the seriousness of the offences and the need for general deterrence.

Orders

Orders of the court

State offences:

Impose a Community Correction Order in relation to each offence of 2 years and 6 months

Commonwealth offence:

Impose a sentence of 1 year and 10 months imprisonment to be served by way of Intensive Correction Order

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Wu [2021] NSWDC 627
Hearing dates:	6 May 2021
Date of orders:	14 May 2021 and 2 July 2021
Decision date:	14 May 2021
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	State offences: Impose a Community Correction Order in relation to each offence of 2 years and 6 months Commonwealth offence: Impose a sentence of 1 year and 10 months imprisonment to be served by way of Intensive Correction Order
Catchwords:	CRIME — Fraud — Dishonestly obtain financial advantage by deception CRIME — Commonwealth offences — Market manipulation SENTENCING — Relevant factors on sentence — Delay
Legislation Cited:	Crimes Act 1900 (NSW) ss 192E(1), Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A Crimes Act 1914 (Cth) ss 16A(2)(j) (ja), 17A, 20A Corporations Act 2001 (Cth) s 1041A Crimes Regulations 1990 (Cth) Regulation 6
Cases Cited:	Joffe and Stromer v The Queen [2012] NSWCCA 277 DPP v JM [2013] HCA 30 DPP v De La Rosa [2010] NSWCCA 194 Sabra v The Queen [2015] NSWCCA 38 The Queen v Scook [2008] WASCA 114 The Queen v Schwabegger [1998] 4 VR 649 The Queen v R Gay [1998] 4 VR 649 DPP v Gregory [2011] VSCA 145
Category:	Sentence
Parties:	Zhongan Wu (Offender) Office of the Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr Dhanji SC Ms Single SC
File Number(s):	2020/128087
Publication restriction:	Nil