Commonwealth Director of Public Prosecutions v Forrest [2026] FCA 14

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25

Commonwealth Director of Public Prosecutions v Forrest [2026] FCA 14 | Case summary | Zoe

[38]

Mr Forrest, now 41 years of age, has graduate and post-graduate qualifications in economics and related areas, and a diploma in taxation law. At the time of committing the offences, he had more than 20 years' experience in senior management, stockbroking and funds management roles. He is a director of an entity called Sublime, which operates as a family office to invest his personal wealth.
Sometime in about August 2024, Mr Forrest entered into an agreement with Mr Michael Cole and Mr Cole's wife to provide, via Sublime, investment management services to various portfolios held by the McKeage Cole Family Office. He was to be paid a base monthly fee of $15,000 (plus GST, so $16,500) and an additional fee if certain performance criteria were met. In that role, he signed a confidentiality agreement relating to any information he obtained, and used a private office maintained by Mr Cole when he was providing services to the McKeage Cole Family Office. The arrangement must have been in place for some time before the agreement was signed, as Mr Forrest was paid $16,500 on 22 July 2024 and on 16 August 2024 (and also on 18 September 2024, before the offending was revealed).
Importantly, Mr Cole was also the chairman of Regal Partners Limited, an ASX-listed investment management company, with approximately $16.5 billion in funds under management as at 31 March 2025.
At 10.00 am on Friday, 23 August 2024, Mr Forrest attended a meeting with Mr Cole at his office for the purpose of providing investment management services to the McKeage Cole Family Office. At about 12.40 pm, Mr Cole left the room for just under 50 minutes. While Mr Cole was away, Mr Forrest obtained access to Mr Cole's computer and thereby access to Mr Cole's email account without Mr Cole's permission. This in turn gave Mr Forrest access to an email attachment, being the Pitch Deck.
The Pitch Deck included the following information defined at [8] in the ASOF as the Inside Information:
1. that a takeover proposal was being prepared for Regal to acquire 100% of the ordinary shares in Platinum via a scheme of arrangement;
2. the offer price of the takeover was proposed to be $1.20 per Platinum share (or $1.30 per Platinum share to Australian-domiciled shareholders who could receive the benefit of 100% of franking credits), comprising a combination of Regal shares and a fully franked special dividend to be paid by Platinum; and
3. subject to Regal receiving due diligence materials in a timely fashion, the takeover was anticipated to be signed and announced by the end of September 2024.
The Pitch Deck set out the details of the proposed acquisition of all the ordinary shares in Platinum by Regal, via a scheme of arrangement. Mr Forrest used his mobile phone to take photographs of the Pitch Deck. He thereby had available to him valuable inside information that he had no right to possess, let alone to use to his advantage.
The obtaining of that information and its subsequent illegal use constituted a profound betrayal for Mr Cole (and his wife). There is a reference to this effect in the bundle of media articles tendered by Mr Forrest and admitted into evidence (notwithstanding the lack of direct evidence from Mr Cole or his wife that they viewed Mr Forrest's conduct in that way). The information was in any event of a kind that Mr Forrest had expressly agreed to keep confidential, even if it was accessed without permission. It was a profound breach of trust to obtain that information, and an even more profound breach of trust to use it for the purpose of illegal share trading.
During a two-week period, commencing on the following Wednesday, 28 August 2024, three working days after obtaining the Pitch Deck, the day before Mr Forrest's first share purchase on 29 August 2024, and apparently concluding on 12 September 2024 (two days after his last share purchase on 10 September 2024), Mr Forrest:

[45]

Mr Wilson is one of Mr Forrest's referees, but curiously, despite referring to having read a copy of the ASOF, does not refer to this use of his name in the ASOF, or the reference to him having an interest in Platinum. Mr Wilson does not either agree or dispute that this took place, but it is an agreed fact upon which I proceed.
As disclosed by ASOF [8(c)], reproduced at [15] above, an announcement had originally been anticipated to be made by the end of September 2024. Before Platinum got to the point of making an announcement, at 4.33 pm on 16 September 2024, after the share market had closed, the AFR published Ms Sood's article. The article stated that Regal was considering making a bid to acquire Platinum, including the observation that while there was "no certainty Regal will make a formal offer, or that a deal will take place, sources said the proposal is in an advanced state and would be in the form of [Regal] shares". In light of the reasonably detailed agreed facts as to communications between Mr Forrest and Ms Sood, including WhatsApp messages, I readily infer that at least one of the "sources" referred to in the article must have been Mr Forrest. Indeed, there is no evidence that Ms Sood had any other source, such that the references to sources in the plural may have been a device to conceal the existence of a single source.
The following morning at 8.51 am on 17 September 2024, before the share market opened, per ASOF [53] Platinum released an ASX announcement titled "Non-binding indicative proposal from Regal Partners Limited". In the announcement, Platinum "confirmed it had received an indicative and non-binding proposal from Regal to acquire all of the shares in Platinum via a scheme of arrangement, subject to due diligence".
The effect of at least a version of the Inside Information becoming generally available, albeit apparently without a reference to the price of $1.20 per Platinum share (or $1.30, if the shareholder had imputation credits), is succinctly described in the ASOF as follows:

[51]

The introduction of insider trading offences in the Corporations Act in 2001 was expressly for the purpose of ensuring the integrity of Australian financial markets: Revised Explanatory Memorandum, Financial Services Reform Bill 2001, at [2.87].
The starting point is grappling with the unique nature of the offence of insider trading. Unlike most offences, where the proscribed conduct is itself at least discouraged and often inherently illegal, a market economy thrives and depends on trading and competition. In the field of share trading, which is a subset of the financial products to which the insider trading proscription is directed, prices go up with increased demand, often driven by good news (or perceived good news) and go down with reduced demand, often driven by bad news (or perceived bad news). That is the very point of such a market, which depends on relevant information being generally available (including by the operation of continuous disclosure requirements). Buying and selling in such circumstances is actively facilitated and thereby encouraged. It follows that cheating of any kind in relation to price sensitive information is anathema to the proper functioning of financial markets, relevantly here the share market.
The antithesis of a properly functioning market is traders acting on information that is not generally available to the wider market. Those who possess information that is not generally available are forbidden to trade, directly or indirectly, unless and until it is so available. It does not matter if the information is good news or bad news, nor whether the inclination is to buy or sell because of, or despite, that information. Failure to maintain that state of affairs risks causing unquantifiable loss to individual traders and harm to the community at large by damaging the integrity of the market as a level playing field: R v Curtis (No 3) [2016] NSWSC 866; 114 ACSR 184 at [24] (McCallum J).
The whole point of the insider trading prohibition is therefore to maintain the integrity of the market by creating and maintaining a level information playing field. Security markets "could not survive and flourish without the confidence of those who elect to invest": Director of Public Prosecutions (Cth) v O'Reilly [2010] VSC 138 at [19] (Forrest J).
As was pointed out in Hartman v Director of Public Prosecutions (Cth) [2011] NSWCCA 261; 87 ACSR 52 at [94] (Whealy JA, Adams and Latham JJ):

[71]

The prosecutor did not rely upon any prior sentences as being comparative, because there were none at the intermediate appellate court level (or superior court level) since the maximum penalty was increased in 2019. This approach reflects the views expressed by the High Court in R v Pham [2015] HCA 39; 256 CLR 550 at [18], [26] and [28] as to sentencing standards being set by intermediate appellate courts.
Mr Forrest provided two schedules of prior sentences, summarising sentences for insider trading and for market manipulation. I did not find the market manipulation sentences of any real assistance as the conduct, while still relevant to market integrity, did not permit any useful comparison by way of any real yardstick for the present offences. With the exception of one sentence, the prior insider trading sentences relied upon by Mr Forrest were for offences committed prior to the increase in the maximum penalty from 10 years' imprisonment to 15 years' imprisonment, so were not of much assistance. The only insider trading sentence that involved the current maximum penalty of 15 years' imprisonment was from the Victorian County Court, involving offending over 7 days, an investment of a total of $130,635.87 and an unsourced tipoff about a takeover.
I did not receive the benefit of any articulation of the unifying principles that any of these prior sentences relied upon by Mr Forrest revealed, so as to render them a meaningful yardstick for the sentences to be imposed in this case: see Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59] (Gleeson CJ), quoted with approval in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The only unifying feature that I could discern in the cases put forward by Mr Forrest was that the outcome in each involved no time in custody being required to be served. That common feature is not a unifying principle.
It follows that I proceed without the benefit of any real yardstick beyond general statements of principle about sentencing for insider trading outlined above, and the substantially increased maximum penalty, considered next.

[84]

(1) Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] - [59].

(2) Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]- [41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] - [25].

(3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

(4) If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19].

(5) Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, "to treat this evidence with anything but scepticism represents a triumph of hope over experience": R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].

[89]

(a) I accept as reliable Mr Forrest's acknowledgement of the seriousness of the offences he has committed, being really directed to the insider trading offences for which he is to be directly sentenced, and his admission that they entailed exploiting confidential information for personal gain;

(b) I do not accept his characterisation of his conduct as being no more than an inexcusable lapse in character and judgment. Without evidence directly from him, I am unable to be satisfied, on the balance of probabilities, that this was no more than a lapse, even as to the obtaining of the Pitch Deck. In any event, the conduct in relation to the use of that information was far more than a mere lapse, but rather much deeper and more problematic, as described below.

(c) I accept as reliable Mr Forrest's admission against his interest that he made a conscious choice to do something that he knew was wrong, dishonest and illegal.

(d) I am prepared to accept that he feels shame and guilt at what he has done, but this is tempered by the fact that he initially denied wrongdoing to the police on 7 November 2024, a position which did not change until March 2025, when I infer he knew about the recovery of the Pitch Deck images.

(e) I am not in a position, without oral evidence from Mr Forrest, to accept his assertion of taking full responsibility for his actions, especially as that is couched in terms of being a "grave error in judgment", but only because that tends to understate the seriousness of his conduct. Importantly, he does not seek to blame anyone else for what he has done, which is what really matters.

(f) I accept as reliable that Mr Forrest's life has changed immeasurably as this accords with the practical reality of his situation. His reference to these changes as being something that he could never have imagined may be more of a reflection that he thought it was unlikely that he would be caught, but I am prepared to accept that as also reflecting an understandable inability to anticipate the extent of the harm his conduct has caused to himself and to those closest to him, both now and in the future. I accept as likely to be accurate that he has destroyed his reputation for being trustworthy and diligent, having integrity and being successful. This conclusion is further supported by the media bundle tendered by Mr Forrest, which shows some of the negative media reporting to which he has been subjected. Whether the damage to his reputation is permanent or not is up to him in the years to come, but there is no reason to doubt that the road ahead for him to rebuild his life is going to be long and difficult.

(g) I do not doubt that Mr Forrest's family has been significantly adversely impacted by him engaging in the offending conduct and being caught. That fact is also clear when regard is had to the contents of the media bundle and the easily accessible nature of those articles. That is a regrettable consequence of behaviour of this kind, especially by people who do not properly appreciate what they already have in the pursuit of more, and stand to lose to the detriment of those closest to them.

(h) I am unable to accept, without detailed and direct evidence from Mr Forrest, what steps he has taken to address his offending, and therefore this basis for having confidence that he will not reoffend. However, I take into account that the rate of recidivism for serious white-collar offending is generally accepted to be low, although not low enough to presumptively assume that there is no role in sentencing for specific deterrence. For the reasons that immediately follow, I consider that specific deterrence remains a relevant consideration, but nowhere near as important as general deterrence, which was not substantively addressed by him in either evidence or submissions (oral or written). That said, it is a difficult topic upon which to say very much.

(i) I accept Mr Forrest's characterisation of his conduct as being designed to make him appear clever and for recognition and accolade. I find this more complex and nuanced explanation an inherently more credible description of the personal gain he saw himself as standing to make from his conduct than simply greed, as the prosecution would have it. That is, Mr Forrest hoped to gain more than just money in the bank, so to speak, as he wanted those substantial financial gains, ostensibly obtained as a result of his skill, diligence and ability as an investor and market analyst, to reflect positively on him for the purposes of his career and to bring future success and presumably wealth as a result.

(j) I accept that Mr Forrest had a difficult upbringing with a psychologically abusive father, whom he paradoxically mourns, because that has the ring of truth, and because his mother gives a sufficiently similar, if more muted, account in her statement. I doubt that this would have been challenged in cross-examination, let alone successfully. This also helps to explain his motivation for obtaining the appearance of success and ability upon a fictitious basis by reason of dishonestly obtaining and using inside information, extending to creating it as well. Explaining and understanding the motivation for his conduct does not condone it. However, it is an indication of the importance of both a degree of specific deterrence for Mr Forrest and more importantly general deterrence for other would-be offenders, whether they are driven by base financial gain, or more complex motivations such as those that I accept drove Mr Forrest.

(k) I am unable to accept Mr Forrest's asserted motivation to rehabilitate himself, at least in any lasting way, without those easily made assertions being able to be tested in the witness box.

(l) I was initially concerned that the regret he expresses is more directed to the consequences of having been caught, than to having engaged in the offending conduct in the first place. However, upon reflection, I do not think that regret at having engaged in the offending conduct in the first place, and regret as to the consequences flowing from what he has done, perhaps even going so far as to having been caught, are mutually exclusive. The two can coexist and I am therefore prepared to accept, on the balance of probabilities, that Mr Forrest is now genuinely remorseful and does genuinely regret having engaged in the offending conduct, which does reduce to some degree the need for specific deterrence.

[95]

Mr Forrest relies upon October 2025 references from Mr Geoff Wilson AO, who is a well-known and outspoken public figure, and five other individuals. The five other than Mr Wilson are all friends of Mr Forrest. They generally attest to him positively as a person and to charitable or other good works. Two refer to the conduct being out of character, one does not refer to the substance of the offending at all, one describes the conduct as being no more than a considerable error of judgment, expresses a belief that he will learn from his error and asks for leniency, and one expresses no doubt about his integrity, which does not engage at all with what he has done. I take all of those references into account, but they do not provide much assistance in the sentencing exercise beyond adding to material indicating past good character, which is not in doubt.
Mr Wilson's reference is in a somewhat different category, because he describes a professional association with Mr Forrest. But his reference is distinctly odd. First and foremost, he does not comment at all on the substance of the offences, let alone express any concerns about Mr Forrest having committed them, or even suggest that it is out of character, beyond noting their seriousness and describing Mr Forrest as reflective and remorseful and having expressed a commitment to learn from these events and "upholding higher standards in the future". He describes Mr Forrest as being honest, but, despite saying that he has read the ASOF, does not comment on the lie that Mr Forrest told police about possessing inside information, nor about the generally dishonest nature of the offending. He describes currently engaging Mr Forrest in employment, albeit in research and advocacy work. He does not comment on the 18 September 2024 conversation between them, described at [57] of the ASOF. He concludes his reference by saying that, based on his direct dealings with Mr Forrest over seven years, and the conduct he has observed, it is his view that Mr Forrest has always sought to act with integrity and respect for others. I am unable to usefully deploy much at all of Mr Wilson's reference because of his failure to grapple with the substantive aspects of Mr Forrest's offending.

[103]

I am of the view that it is too simplistic to characterise Mr Forrest's motivation in committing the insider trading offences as greed, for the reasons set out at [59 59 (i)] above. But this does not make his motivation any less blameworthy to any measurable degree; it is not a higher moral basis than greed, especially as it was evidently intended to elevate his reputation on a false and dishonest premise.
I am unable to accept Mr Forrest's characterisation of his conduct as involving a lack of planning or sophistication. The share purchases were structured in a way that indicates considerable planning, and there is no evidence from him to resist that ordinary inference being drawn. The dealings with Ms Sood to advance a favourable article being published in the AFR also involve planning and a degree of sophistication.
It is unclear how much planning or premeditation went into obtaining the inside information. It is possible that it was preplanned, but equally possible that it was opportunistic in the sense of grabbing the opportunity when Mr Cole left the room. I readily infer, and am satisfied beyond reasonable doubt in the absence of any evidence to limit drawing the obvious inference, that Mr Forrest did not merely chance upon the Pitch Deck, which would be a most unlikely coincidence. But I am left in the dark as to how he was able to find, and therefore to photograph, the Pitch Deck. It was not in the nature of an unsolicited tipoff of inside information: he was not the passive recipient of inside information, nor was he a true insider. But his conduct in obtaining the Pitch Deck was relevantly indistinguishable from being a true insider in that he had access of a kind that a true insider would be expected to have. However, the evidence does not disclose how Mr Forrest was able to find the email to which the Pitch Deck was attached.
To the extent that Mr Forrest's conduct can fairly be characterised as opportunistic, that is confined to actually obtaining the Pitch Deck, and even then, only in the sense that he seized an opportunity that arose to find and photograph it. Despite this, it was accepted that access to Mr Cole's computer and email on this occasion and for this purpose was unauthorised. Therefore, I am left with the bare fact of Mr Forrest having obtained the Pitch Deck deliberately and dishonestly, and then having put it to valuable use as information that was not generally available to other investors and would-be investors in Platinum. What then followed in relation to the use of that information was plainly premeditated, even if it cannot be known how far in advance.
I am, however, satisfied beyond reasonable doubt that, by the time Mr Forrest spoke to Ms Sood on 28 August 2024, a relatively short time after obtaining the Pitch Deck, he must have carefully planned, at least in general terms, how he was going to use the inside information to maximum effect. This must have included how to increase its value by his communications with her, which resulted in her becoming aware of Regal's plan and the AFR publishing her article about the proposed acquisition. Mr Forrest was thereby able to influence when the inside information became generally available, so as to influence the share price, in a way that was otherwise unlikely to have been possible. Although the evidence does not contain all the detail of how that was carried out, it is clear that Mr Forrest sought to avoid a paper trail in his communications with Ms Sood, as he refused to "tell" her details about the story over WhatsApp and insisted that he had to "show her" and "see [her] in person", although there is no evidence that this additional step was ever taken.
It follows that, in the execution of the second insider trading offence there had to have been a considerable degree of premeditation and contemplation prior to the offending conduct itself of procuring the buying of the shares while in possession of inside information, including the additional inside information, especially in relation to Mr Leary and Jatam's trades, given their close temporal proximity.
While the share purchases themselves were not sophisticated, being apparently straightforward, in light of Mr Forrest's stated motivation I readily infer that he conducted the trades in his own name to enhance his reputation as a share trader, including his ability to assess the short-term future share price, so as to give a false impression of the basis for his true ability, and related factors such as skill and diligence. I am unable to accept that procuring others to trade was overtly not directed to avoiding detection, but that does not seem to matter much, because I readily infer that this was designed to add to demand for Platinum shares, and presumably form part of the process of enhancing his reputation with those clients, and, it would seem, getting collateral benefits such as commissions, at least in relation to Mr Mizzi and Jatam's trades. It is plain that he used his skills, training and experience to be able to take advantage of the inside information and engage in both forms of insider trading (both directly and through procuring like conduct by others).
I am also unable to accept that the extent of the breach of trust involved in obtaining and using the Pitch Deck information was in any way lessened by the way in which this took place. The breach of trust cannot be downplayed because Mr Cole's computer was accessed only once, especially when regard is had to the high quality of the information obtained from the Pitch Deck. Mr Forrest obtained specific proposed takeover information which allowed him to plan and execute the trading that followed, and enabled him to procure share purchases by the other three.
I do not accept that there is any real mitigation to be had in the duration of the offending not extending over any substantial period of time. The circumstances rather than the criminality dictated how long it all took. Mr Forrest had a window of up to a month between when he accessed the Pitch Deck on 23 August 2024, and when the announcement was going to be made, planned to be by the end of September 2024. The time period over which the trades took place, being several weeks, was ample time to reconsider and desist, or, instead to persist. I infer that he took the opportunity to accelerate the process, but even if that is not so, the period of weeks rather than something longer does not operate as any meaningful mitigation.
As to the profit that Mr Forrest made himself of just over $300,000 and the lesser gains made by the other three traders that he procured to buy shares, while that is relevant, I do not consider that this is the best or dominant factor to take into account when assessing Mr Forrest's criminality. Far more important is the very substantial investment that Mr Forrest made of over $2.6 million. It can readily be seen that the level of profit was a matter of happenstance rather than design on the part of Mr Forrest or any of the other investors. In the case of Mr Forrest, without any change in his behaviour, his profit could have been, for example, a third of what it was (about $100,000), or three times what it was (approaching or even exceeding $1 million). It all depended on the market reaction to Regal's proposal in relation to Platinum becoming known to the share market participants by becoming generally available and ended up being quite a modest reaction of around 12.5%.
What matters more in the assessment of Mr Forrest's criminality is the size of his investment and his endeavours to maximise the return that would take place to the extent that he could influence that, including by encouraging demand for Platinum shares and by facilitating the publication of information that he must have known, and intended, would boost both the demand for, and the price of, Platinum shares. The description that Mr Forrest gives to his investment as being not insignificant tends to downplay his criminality.
It is also necessary to have due regard to the fact that greater criminality is involved with rolled up charges, as described in the quote from Glynatsis above at [40]. In the case of the first insider trading offence, that is significant, although plainly enough the eight individual offences charged as one were part of a course of conduct, to be taken into account generally, and also in the application of the totality principle.
While the further information that Mr Forrest effectively created by his communications with Ms Sood as to a forthcoming article to be published by the AFR is described in the ASOF as additional inside information which he had been instrumental in creating, it is important to recognise the role that this information played in relation to the evident overall strategy. It has the effect of elevating the overall criminality.
A further and important measure of the criminality involved is that Mr Forrest denied having any inside information when voluntarily interviewed by police on 7 November 2024, even though a search warrant had been executed and his mobile phone had been seized. He falsely asserted that his decision to trade in Platinum shares was based only on publicly available information.
Overall, the objective seriousness of the insider trading offending was significant and warrants an overall sentence that includes a limited measure of specific deterrence and a substantial measure of general deterrence, affected by the subjective features considered below.

[107]

I accept the prosecutor's submission that Mr Forrest's only attempt to obtain an AFSL in July 2024, after he had started providing investment management services early that year and after he was being paid for them, is properly characterised as a striking failure to comply with a regulatory regime directed to protecting the community. It necessarily must carry some weight in the sentencing for the second insider trading offence, but I would not go so far as Mr Forrest suggests to say that any increase in the sentence would be minimal, at least in the sense of being de minimis. Despite this, I do accept that while striking in nature, it is also quite confined and limited, by reason of the schedule offence taking place for nine months and relating to Mr Forrest assisting only a small number of clients with investment advice, the lack of evidence of any bonus payment being made or of any actual harm, and the offending ceasing before any intervention by the authorities. I accept, as Mr Forrest submits in writing, the following propositions:
1. The offence taken into account is not to be regarded as an offence for which a person has been convicted (s 16BA(10)).
2. The nature and seriousness of the scheduled offence is relevant to determining an appropriate sentence for the offence for which the offender is to be sentenced [citing Attorney General's Application at [159] and other like authority].
3. There is no requirement to quantify the effect or specify the sentence that may otherwise had been imposed had there not been scheduled offences - the scheduled offences are only a relevant consideration in the "instinctive synthesis" of all the relevant factors [citing Attorney General's Application at [159] and other like authority].
4. The fundamental focus for the sentencing court is the primary offence. The sentencing process must not allow the appropriate sentence for the s 16BA offence to determine the overall sentence and then apply modification on account of totality because scheduled offences have been taken into account under s 16BA. Such an approach would lead the court into fundamental legal error [citing Abbas v R [2013] NSWCCA 115; 231 A Crim R 413at [22] (Bathurst CJ) and at [256] (Campbell J)].

[110]

Had Mr Forrest defended the charges, conviction was not certain because of the vagaries of complicated white-collar offences, but it was highly probable. The main mitigation flowing from the guilty pleas is the very early stage at which they were entered in court. The guilty pleas were not only indicated and agreed to before the charges were laid, which I infer was itself part of a charge negotiation, but also before any brief of evidence had been compiled. While I have no doubt that the final brief of evidence would have produced a very strong prosecution case, that would have taken a considerable amount of time and would have required significant resources from ASIC, the CDPP and possibly further involvement of the AFP.
Insider trading is a complicated and technical offence. All of those resources were freed to deal with other cases. There was also the saving of court time. However, care must be taken in giving too much weight to this, lest it amount to treating Mr Forrest more favourably than someone who exercises their undoubted right to compel the case against them to be proven beyond reasonable doubt. The end result is that I give real weight to the facilitation of the course of justice reflected in Mr Forrest's guilty pleas being entered at the very earliest possible time, and the saving of resources that this entailed. In the converse, the sentence that would have been imposed following guilty verdicts after a trial would have been greater than a sentence which is appropriate to impose upon Mr Forrest in these circumstances.
The real possibility of Mr Forrest successfully defending the insider trading charges was not strong, although conviction can never be assured for such complicated offences. Despite initial denials of possessing inside information, he was caught red-handed. He had on his mobile phone photographs of PowerPoint presentations containing detailed information about a proposal to merge Platinum with a company led by his effective employer, obtained by him from that effective employer. Those photographs were not volunteered but obtained by investigative action, including in particular by the execution of a search warrant. This too counts against treating the guilty pleas of themselves as evidencing much at all in the way of contrition or remorse.
I readily infer beyond reasonable doubt that Mr Forrest deleted or caused to be deleted the Pitch Deck on his mobile phone and that he must have thought that, as a result, those photographs would not be detected. He was mistaken in that regard, and once the data comprising the nine of the 11 pages of the deleted Pitch Deck had been recovered, guilty pleas to the insider trading charges were all but inevitable, even if the likelihood of a conviction was not quite as high as that, given the complexity and difficulty in prosecuting offences like this.
As outlined above, the legal process of prosecution and proof beyond reasonable doubt would have taken court and prosecutor time and resources, such that Mr Forrest seeks a utilitarian discount for avoiding that impost on the public purse.
Offences of this nature are difficult to detect, investigate and successfully prosecute. That is why general deterrence is so important. Things can go wrong with even the strongest of prosecution cases. To refer to offences of this nature, with evidence of this kind, as inevitably resulting in conviction may be more the product of optimism than experience. There must be a real incentive to enter guilty pleas at a very early stage of the process, which has the greatest utilitarian and likely rehabilitation benefits. Giving too much of a discount for a late guilty plea may be distinctly problematic as, by then, it tends to de facto sanction those who exercise their right to trial and discourages the more valuable early guilty pleas. Taking utilitarian benefits too far also risks sacrificing principle for expediency.
Mr Forrest's guilty pleas were made very early and will be given significant weight. However, I do not consider it necessary or appropriate to identify a specific percentage to this feature. It is simply an important part of the instinctive synthesis of all of the inputs to the sentences arrived at.

[123]

It is common ground that Mr Forrest must be sentenced to imprisonment for the offences he has committed. However, he seeks an outcome by which he will not serve any part of that sentence in prison, and does not identify any particular duration of sentence that is appropriate. I note however that the statutory limitations on making an intensive correction order have the effect of capping the total sentence that can be imposed to three years imprisonment. The prosecutor, being mindful of the strict prohibition on all prosecutors for federal offences urging imprisonment of any identified duration, contends that a period of actual incarceration is required in all the circumstances.
This has not been an easy sentencing exercise. However, I am satisfied that Mr Forrest's case for there to be no time in prison at all has not been established and in any event, an overall sentence of only three years' imprisonment, being the overall maximum sentence for an ICO to be available, falls well short of what is required to meet the threshold of being appropriate in all the circumstances. I am satisfied that nothing less than a substantial period of imprisonment is required. To a limited extent, that is also called for upon the basis of a residual need for specific deterrence, even though, upon careful reflection, I view the risk of reoffending to be low, but not non-existent. A particularly important consideration in this case is general deterrence, supported by the authority considered above.
I have weighed up all of the competing considerations, and expressed conclusions as to those of most importance when that has been possible. For such serious offending to be engaged in, and not result in a custodial sentence, would almost entirely defeat and deny the critical need for general deterrence; it would not really deter those contemplating offending if the risk of significant sanction was so little relative to the substantial gains able to be made. The message that this would send out is that such offending would not result in a significant curial sanction, provided that there was no more than an early guilty plea, a clean prior record, a sound subjective case, and an agreement not to resist a disgorging of the profit. Mr Forrest's guilty pleas have a weighty part to play in the duration of the sentence to be imposed but have a much lesser role to play on the way it is to be served.
A very important competing consideration is the substantial subjective case that Mr Forrest has advanced, especially in terms of his risk of reoffending, and what I find to be a severe impact on his dependents, not in terms of proven real financial need, which has not been satisfactorily addressed, but rather in terms of his physical absence while incarcerated. While that does not absolve him from serving actual time in prison, it has a significant impact on the length of time that he should be required to serve before being eligible to be released on parole. Of course, time on parole is still part of serving a sentence of imprisonment. It is just that the remaining part of the sentence of imprisonment is served in the community, provided that the conditions of parole are complied with.
I am particularly concerned about the impact that Mr Forrest's absence is going to have on his young sons, now aged 5 and 8. I acknowledge the generally recognised importance of the earlier developmental stages of such young children, but note it is also generally recognised that this becomes especially critical as children grow into adolescence and the teenage, young person and young adult years. The World Health Organisation defines adolescence as occurring between 10 and 19 years of age generally, with the key developments occurring from puberty, which is typically from about 11 years of age. I do not consider that there is anything controversial about those well-known statistics. I consider it critical to the long-term wellbeing of Mr Forrest's sons that he is able to return to being with them as soon as possible, ideally before adolescence has really got underway for his older son, and before his younger son has reached that stage. It is fortunate that an appropriate sentence in all the circumstances allows this outcome to be achieved, as described below.
A still significant, but less substantial consideration is the impact on Mr Forrest's wife and mother. In the case of his wife, a significant part of the impact is that she will need to cope with two boys in the years leading to adolescence on her own. In the case of his mother, who is 67 years of age, he will not be able to provide support to her in some of the daily tasks that she finds difficult.
What I am required to do is arrive at a sentence, both as to the head sentence and the non-parole period, that is of a severity that is appropriate in all the circumstances: Hili at [23]-[45], but especially at [24] and [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). There is no fixed ratio required between the overall head sentence and the non-parole period, but it too must be appropriate in all the circumstances.
I consider that the resolution of the complex and in places conflicting considerations is best met not by lowering the overall head sentence below the level necessary to advance, in particular, the objective of general deterrence, but rather to impose as short a non-parole period as I consider is properly available. In this case, I consider that a 50% non-parole period is appropriate and sufficiently severe.
While there is a significant overlap between the two insider trading offences, there were important differences as well. Most importantly, the first insider trading offence was committed by Mr Forrest himself with his own investment (albeit that the source of those funds was not identified) and resulted in personal profit, while the second insider trading offence involved additional inside information and procuring others to trade with their own investments resulting in their own prospective gains, some of which were realised. To make the two sentences wholly concurrent would fail to recognise those and other distinctions; while to make the two sentences wholly consecutive would fail to recognise the common features and overlapping conduct.
The final step is to reduce all of those considerations into a single number for each insider trading offence, by the process of instinctive synthesis. In doing so, I have had regard to concurrency and accumulation and to the principle of totality as a final review and check on the overall sentence to be imposed.
The result that I have arrived at is that Mr Forrest should be sentenced to 5 years' imprisonment for the first insider trading offence and to 2 years' imprisonment for the second insider trading offence, with one year of consecutiveness between the two sentences. In reaching that conclusion, I have had regard to the sentencing considerations addressed in some detail above.
That result takes into account totality. Without totality, I would have:

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