Australian Competition and Consumer Commission v Rana

REASONS FOR JUDGMENT 1 This judgement concerns the sentence to be imposed on the defendant, Micheal Lee Rana. 2 Micheal Rana was charged with aiding, abetting, counselling, or procuring the commission of an offence contrary to s 155(5)(a) of the Trade Practices Act 1974 (Cth) (the Act) committed by NuEra Wellness Centre Pty Ltd, namely, the refusal or failure by NuEra Wellness Centre Pty Ltd to comply with a notice issued to it under s 155(1) of the Act. Micheal Rana is liable for committing the principal offence under s 11.2(1) of the Criminal Code (Cth). The offence was said to have been committed on 22 November 2006. 3 The hearing of that charge was preceded by a number of directions hearings in which the Court ordered that any affidavits to be relied upon by the parties would be filed according to a timetable stipulated. Documents were filed by Micheal Rana as well as by his father, Paul Rana. The contents of those documents and the circumstances in which they were filed are set out at [6] to [37] of the reasons for judgment in Australian Competition and Consumer Commission v Rana [2008] FCA 374 (Rana). They should be read in these reasons as if set out in full to the extent that they relate to Micheal Rana. 4 On 19 November 2007, the hearing of the charge against Micheal Rana was fixed to commence. On that occasion the Court sought to take the appearance of the defendant, Micheal Rana. No appearance was entered despite the fact that, as admitted later, Micheal Rana was present in court. As a consequence a warrant for his arrest was issued. 5 On 14 December 2007, the warrant for arrest was executed. The Court received a report of the arresting officer which was described by Ms Orr, who appeared as counsel for the prosecutor, as follows: At the time of arrest Mr Micheal Rana denied his identity, said that the name Micheal Rana was a corporate fiction, that he was not an Australian citizen. Mr Rana was arrested at 2/10 Georgia Crescent in Werribee. That was an address that the police had attended previously and asked for Mr Rana and been told that he did not reside at that address. Even on this occasion a person told the arresting officer that Mr Rana did not reside at this address, but Mr Rana appeared and arrest subsequently took place. 6 On 17 December 2007, an application for bail was made on Micheal Rana's behalf and was refused in view of the uncertainty that he would appear to answer the charge. In circumstances described at [33] to [35] of Rana [2008] FCA 374, the hearing of the charge was eventually listed for 22 December 2007. 7 On 22 December 2007, Mr Samargis appeared as counsel on behalf of Micheal Rana, and Micheal Rana entered a plea of guilty to the offence. On that occasion, the application for bail was successful. 8 In view of those circumstances the hearing of the plea in mitigation was fixed for 18 February 2008. On that date, submissions were made by Mr Samargis and also by Ms Orr. Significantly, on that occasion Micheal Rana himself gave evidence and was cross-examined. The essential features relevant to sentencing which Micheal Rana explained to the Court, were that he worked at the NuEra companies for the most part in an administrative capacity. He said that at the time of the service of the notice under s 155 of the Act he was in the midst of domestic turmoil, his wife having at that stage suffered a miscarriage of their first child. 9 Micheal Rana said he did not understand the documents which were filed in the course of the preparation for the hearing. He apologised for his conduct, both in respect of the filing of the documents and of the failure to comply with the notice under s 155. In relation to his failure to identify himself on 19 November 2007, he said that he had acted on the basis of what his father had said to him. 10 His evidence presented a difficulty for the Court. On the one hand, Micheal Rana apologised for his conduct and, on the other hand, the evidence showed at times that Micheal Rana seemed to have little understanding of the wrong that he had done. 11 A constant theme in much of Micheal Rana's evidence was related to the influence of his father and the fact that he had both failed to respond to the notice, and also sought to thwart the processes of the Court by the filing of the nonsensical documents referred to in the reasons for judgment delivered in Rana [2008] FCA 374, as a result of the influence of his father. At the conclusion of that evidence, the Court indicated that it may be assisted in understanding more about Micheal Rana's attitude to his wrongdoing with the assistance of an expert report. Mr Samargis obtained instructions and proceeded with the obtaining of such a report. Indeed, the report was produced in very short time. 12 The matters which are required to be taken into account in this matter are set out in s 16A(2) of the Crimes Act 1914 (Cth) (the Crimes Act). It is to those matters which I now turn. In favour of leniency for Micheal Rana is the fact that he has not been convicted of any offence before (s 16A(2)(b)). His plea of guilty, entered on 22 December 2007, is a factor to be taken into account, although it was hardly made at the first opportunity and therefore carries little weight (s 16A(2)(g)). 13 Micheal Rana is now 26 and married with a child. The circumstances of his involvement with the NuEra companies have caused devastation to his life. He is now bankrupt. He lost the house in which he was living. He has been arrested and was in custody for eight days. It is in Micheal Rana's favour that throughout the proceedings it has been obvious that he has the strong support of his wife, his mother and his in laws. That attests to loyalty which must be based on some characteristics which are positive. 14 Furthermore, since Micheal Rana's first appearance in the Court he has responded to the suggestion that he needed to demonstrate a greater understanding and responsibility of his wrongdoing. He applied for and obtained some voluntary work with the Salvation Army and has inquired into doing community work with the local council. Those efforts, timed as they were, should be taken into account as positive indications of an attempt to redress the wrongs which had been done (s16A(2)(f)). 15 At [49] to [50] of Rana [2008] FCA 374 there is a discussion about the importance of compliance with s 155 of the Act. These reasons will not set those sections out but rely upon that discussion to inform the sentencing in this case. 16 Importantly in this case is the evidence which was given on behalf of the prosecution by Mr Small, which is described at [47] of Rana [2008] FCA 374. That evidence demonstrates the sad and pernicious effects of the offending conduct on vulnerable people. Whilst Micheal Rana in cross-examination indicated some acceptance of responsibility for that, it is not entirely clear that his attitude as expressed was entirely genuine. This is especially so when weighed against some of Micheal Rana's other answers which suggested or expressed the view that the clinics operated by the various NuEra companies were misunderstood and in fact provided soothing and valuable services to those that attended. 17 However, in sentencing Micheal Rana, the Court was assisted greatly by the report of Mr Joblin, a forensic psychologist. He exposes clearly from consultation with Micheal Rana that what he describes as the psychological conflict in Micheal Rana's mind at present is the conflict between a son who has high admiration and loyalty to his father, and at the same time a dawning understanding that his father was involved in serious wrongdoing. Relevant sections of the report are as follows: 6. The fact that his father is now in custody has produced some considerable psychological conflict for Mr Rana. He was emphatic that as he sees it, his father was simply dedicated to helping others and now he is in jail for trying to do so. For Mr Rana that is unconscionable and a matter that results in psychological conflict. 7. Mr Rana reported that he has always respected his father for his dedication to helping others. He acknowledged that there has been negative media coverage about the "clinic". However, Mr Rana believes that those are persons who are not directly involved in the clinic and do not understand the nature of the treatments given. This may be somewhat of a rationalisation and again needs to be placed into the context of his extraordinary relationship with his father. … 9. Mr Rana acknowledged that when his father is released, he will have no business dealings with him but he emphasised that he will be continuing his close relationship with his father. … 11. From perusal of the affidavits and my discussion with him it does seem much of his difficulty has involved his father. Mr Rana seems to have had a blind adherence to his father's dictates. He reported, for example, that prior to going to court, his father had indicated to him that because they could not afford legal representation, his father and brother would run the defence. Mr Rana reported that his father indicated to him that if he attended court, he should sit in the back and literally say nothing in case anything he might say prejudiced the case. Thus, he reported that when he was asked about his presence in court or to account for himself in court and said nothing, he was acting on the instructions of his father. It is interesting to note that those instructions were not only from his father but also from his boss. Mr Rana indicated that he felt if he disobeyed his boss, he would lose his job. Therefore, it does seem that Mr Rana's mute presentation in court related to this extraordinary relationship with his father and his directive that he say nothing. 12. Mr Rana reported that he is somewhat confused about the court processes. He acknowledged that he was a director of the company and as a result he had a large degree of responsibility. However, that is all in conflict with the relationship he had with his father who indicated to him that there should be no difficulties in his business and if the ACCC questioned him, the worst that could happen would [be] that he would be made bankrupt. 13. This extraordinary relationship with his father is not the result of limited intellect but may relate to Mr Rana's somewhat acquiescent personality. Mr Rana seemed to have been somewhat in awe of his father and during my interview with him any discussion about his father was positive. In addition discussion about his father's history of employment and his various business was all positive. It does seem that the idea of his father opening the "clinic" to assist others reflected the ambitions Mr Rana had had when he was in school. Thus, he has had an extraordinary admiration for his father. … 15. Mr Rana indicated his awareness that he should hate his father as he has caused the problems he now faces. However, he reported he cannot hate his father. … 23. I am of the opinion that Mr Rana has the basis now to consider the inappropriateness of his behaviour and thus the prognosis in terms of re-offending must be reasonably good. That is in spite of my awareness from his report that he … still maintains a positive emotional relationship with his father because as he reports he['s] still "my father". This does not mean however that relationship will dictate any further antisocial behaviour. 18 Ms Orr rightly pointed out that Mr Joblin tendered the opinion that Micheal Rana is not suffering from any mental illness, does not have an intellectual disability, that he is not psychotic and there is no mental impairment. Mr Joblin stated that he does not regard Micheal Rana as psychologically well. Ms Orr sought to explain this opinion as a reference to the anxiety caused by involvement in the legal system. Reading the report in full and in its context, the Court accepts that Mr Joblin was referring to the psychological conflict which he describes on a number of occasions as the conflict arising between the feeling and regard Micheal Rana has for his father and the recognition that there has been serious wrongdoing by him. 19 The question which arises from this analysis is how best to reflect this in the appropriate sentence for Micheal Rana. Micheal Rana's psychological conflict requires him to develop an understanding that he has been involved in a serious wrongdoing and to understand that it is important for him to exercise an independent evaluation of conduct which others suggest he engage in. It is clear enough that such an understanding has not yet fully developed. A further period of imprisonment would not assist in the specific deterrence which is required against this background (s16A(2)(j)). 20 On the other hand, it is necessary for Micheal Rana to have a period in which he is under threat of consequences if he were to act unlawfully by failing to exercise his own judgment. 21 That particular object is best achieved by the imposition of a recognisance release order under s 20(1)(b) of the Crimes Act. Section 20(1)(b) provides (1) Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit: (a) by order, release the person…upon his giving security…by recognizance…to the satisfaction of the court, that he comply with the following conditions: (i) that he will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order; … (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a)… forthwith 22 Micheal Rana has been convicted of a federal offence within the meaning of s 20(1)(b) of the Crimes Act. For that offence he is sentenced to two months imprisonment. This period of time takes into account the nature of the offence and Micheal Rana's liability as principal offender. Under s 20(1)(b) the Court directs that Micheal Rana be released forthwith upon giving security by recognisance in the sum of $1000 and on the condition that he be of good behaviour for a period of 18 months. This period allows for a sufficient period of time following Paul Rana's release from prison for Micheal Rana to demonstrate appropriate independence from the influence of his father or any other person.