Regina v Frawley - [2005] NSWSC 585

CITATION:
Regina v Frawley [2005] NSWSC 585

HEARING DATE(S): 30/5/05, 17/6/05

JUDGMENT DATE :

24 June 2005

JUDGMENT OF:
Bell J at 1

DECISION:
Sentenced to a term of two and a half years' imprisonment to be served by way of periodic detention. Offender is to report to the Officer in Charge of the Periodic Detention Centre at Parklea on Saturday 2 July 2005. The sentence will commence on that day; I direct the offender's release on security on a recognizance release order after he has served twenty months of the sentence.

LEGISLATION CITED:
Corporations Act 2001 (Cth)
Crimes Act 1914
Proceeds of Crime Act 2002 (Cth)

CASES CITED:
Cribb (unreported) WA District Court 9 June 1998
R v Doff [2005] NSWCCA 119
Cameron v The Queen (2002) 209 CLR 339
Hannes (2002) 173 FLR 1
R v Kearns [2002] NSWCCA 367
Kin Lang Teh (unreported) Victorian County Court 2 September 1991
Regina v Rivkin [2004] NSWCCA 7
Sweetman (unreported) District Court Queensland 17 December 2004
R v Wall [2002] NSWCCA 42
R v Williams [2005] NSWSC 315

PARTIES:
Regina
Richard James Frawley (Accused)

FILE NUMBER(S):
SC 2003/107

COUNSEL:
L P Robberds QC / A Wigney (Crown)
T Game SC / M Thangaraj (Accused)

SOLICITORS:
Cth DPP
Morgan Lewis Attorney (Accused)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

Friday, 24 June 2005

2003/107 Regina v Richard James Frawley
JUDGMENT

1 BELL J: On 30 May 2005 the offender entered a plea of guilty to a charge that he purchased securities, being 253,500 ordinary shares in JNA Telecommunications Limited (the securities), while in possession of information concerning JNA Telecommunications Limited that was not generally available, being information which a reasonable person would expect to have a material effect on the price of the securities if it were generally available, and being information which the offender knew, or ought reasonably to have known was not generally available and if it were generally available, might have a material effect on the price of the securities.

2 The offence is provided by s 1002G(2)(a) and s 1311(1)(a) of the Corporations Act 2001 (Cth). It carries a maximum penalty of five years imprisonment or a fine of $200,000 or both.

3 The offence is particularised as taking place between 21 May and 15 July 1998 and as involving twenty-one purchases of shares parcels that varied between 41,300 and 2000 shares.

4 JNA Telecommunications Limited (JNA) was at the material time a public company listed on the Australian Stock Exchange (the ASX). It was in the business of supplying networking and telecommunications systems and services to industry.

5 From late 1997 until mid-1998 JNA was searching for a “strategic partner” to help market a new product. The product, known as the “the Opal product”, was a voice/data access platform. It was expected to make a successful entry into the growing voice communications market.

6 A preliminary information memorandum (the memorandum) was distributed to a limited group of potential…

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 Regina v Frawley

Details

AGLC: Regina v Frawley [2005] NSWSC 585
Case: [2005] NSWSC 585
Decision Date: 24 June 2005

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Criminal Division, Bell J sentenced Richard James Frawley, who had pleaded guilty to insider trading under the Corporations Act 2001 (Cth). The key legal issues were the culpability of the offender and the appropriate penalty for the offence. The court found that Frawley's actions, which involved purchasing shares in JNA Telecommunications Limited based on confidential information from his employer, Cisco, demonstrated a clear understanding of the materiality of the information and its potential impact on the share price. The court rejected arguments that similar information was available in the market, emphasising Frawley's specific and confidential access to the information.

Bell J assessed the offender's culpability, noting Frawley's substantial profit from the trades and his immediate action following receipt of the confidential information. The court also considered mitigating factors, including Frawley's early guilty plea, his cooperation with authorities, his personal circumstances, and his efforts towards rehabilitation. The court acknowledged the delay in prosecution but found that this warranted some leniency. Ultimately, the court determined that a custodial sentence was necessary to maintain the integrity of the securities market, despite the mitigating factors. The sentence of two and a half years' imprisonment, to be served by way of periodic detention, reflected the seriousness of the offence and the need for general deterrence. Frawley was also required to pay a pecuniary penalty under the Proceeds of Crime Act 2002 (Cth).

Orders