Hartman v R

The Applicant's Subjective Case - Material before the Sentencing Judge 35The applicant presented a substantial subjective case at the sentencing hearing. For example, there was evidence to demonstrate that the applicant was fully willing to facilitate the course of justice. This was evidenced by his prompt attendance at ASIC on the 21 September 2009 and his voluntary admissions made during the first interview. It was evidenced thereafter by his facilitation of the making of the order under the Proceeds of Crime Act . It was also evidenced by his entry of a plea at the earliest available opportunity. His co-operation with authorities and the provision of assistance, both past and present, was also significant. 36One factor of special importance in the sentencing proceedings was the material relating to the applicant's mental illness. This, of course, had a bearing not only on the subjective case presented on his behalf but also on the issue of the overall criminality involved in the commission of the offences. 37The evidence before the Sentencing Judge included various reports of the applicant's treating psychiatrist, Dr Wilson, and the report of the consultant psychiatrist, Professor Jonathon Phillips. 38Dr Wilson had treated the applicant since the time of his admission to the North Side Clinic in January 2009. He had been admitted in a distressed and suicidal state. Dr Wilson had diagnosed the applicant as suffering from a major depressive disorder with anxiety, pathological gambling and past (chronic) dysthymia. Dr Wilson stated in his report on 7 November 2009: There was initial consideration given to the diagnosis of adjustment disorder with depressed mood, but his syndrome was much more severe, pervasive and persistent than an adjustment disorder. The pre-existing dysthymia and strong family history further contributed to the diagnosis of major depressive order. 39In relation to the gambling addiction, referred to in his reports, Dr Wilson said: Mr Hartman meets diagnostic criteria for pathological gambling. This includes preoccupation with gambling, a need to gamble increasing amounts of money, plus feeling gambling is pointless if you cannot gamble large amounts. He gambles to relieve dysphoria and as a way of achieving a sense of escape...as mentioned, some of Mr Hartman's stock market activity appears to constitute gambling behaviour also. Dr Wilson developed this at page 3 of his report when he said: There are elements of Mr Hartman's approach to his work in share trading that are closely akin to gambling. Mr Hartman describes a similar "rush" and excitement with share trading to gambling. The share trading also has a compulsive quality and often interferes with normal social and home function. A striking example is that Mr Hartman would wake through the night and check the price of various shares. He had his bedroom set up so that he faced the computer screen. Because he could not view the screen from the lying position, he kept binoculars with him, and viewed the screen through these throughout the night. 40It appears that shortly prior to the sentencing hearing, the applicant suffered a brief relapse in relation to his gambling addiction. He had been free from gambling activities for quite a considerable time prior to this relapse. Dr Wilson had attempted to pre-empt this in his earlier work with the applicant. In his September 2010 report he said: In the light of our work and various discussions, John and I together formulated his difficulties as involving a combination of factors such as being heavily prone to addiction, being inexperienced and foolish with regard to judgment as well as suffering significant depression and trying in a sense to self medicate by way of gambling which included his illegal activities. 41The reasons for the applicant's depressive condition were not in issue. It appears to have been generally accepted at the sentence hearing that the applicant's serious depressive problems began when he was in his last year at school. Prior to this time, he had been a relatively happy boy, successful in many areas of his schooling and popular with his many friends. There was however, as Dr Phillips in his reports noted, a strong family history of psychiatric disorder. Up until his final year at school, the applicant had recorded a generally happy family life but his situation changed dramatically when his brother Alex was diagnosed with serious bi-polar disorder at the age of eighteen. Alex made a suicide attempt at the time. He was treated by psychiatrists and found to be medication resistant. There were involuntary admissions to hospital. These events, according to the applicant's father and teachers, had a significant effect on him and led to serious changes in his personality and behaviour. 42In his September 2010 report, Dr Phillips expressed the opinion that the applicant suffered chronic depression spectrum symptoms and that these, according to reliable material, had been in existence at the time of the commission of the offences. Dr Phillips thought it probable that the applicant had sought temporary relief from his dysphoric state through his illegal activities. He explained that relief, at least in part, was achieved through his personal trading activities and through gambling. However, he did not believe that the applicant had a personality disorder in those regards. He concluded in this report: Mr Hartman has a clear understanding of his wrongdoing. He does not deny his illegal actions. He recognises that he will be punished for his illegal actions and is trying to make adjustment to this. He is ashamed by his illegal actions and is contrite. He is not psychopathic by disposition. He committed his illegal actions at a time when his thinking was altered because of his chronic depression symptoms with motivation at the time principally to lift himself (albeit in a temporary matter) above his anhedonic symptoms. He remains in therapy with Dr Wilson and has reached a point in the process of treatment where it is highly unlikely that he will offend again. 43We turn next to consider a third factor that was of importance in the sentencing hearing. 44The material before the Sentencing Judge relating to the applicant's provision of assistance to the authorities and cooperation with them was beyond doubt compelling. Indeed, at the hearing, the experienced Crown Prosecutor informed the Sentencing Judge that the assistance he had provided was "substantial" and "significant". The learned Crown Prosecutor added (Transcript 101): What happened as well was that not only was there a plea, but there was, I am instructed, a disclosure of his own activity as regards a number of activities that he had been involved in. It does not happen often in cases such as this...the number of cases that people expose, frankly, the whole of their activity is unusual and it is sought to be encouraged by the investigator involving these matters and sought to be encouraged by the only way that is possible by your Honour dealing with it here. Mr MacAlpine in his statement said (Appeal Book 240-241): [42] The offender's assistance to ASIC commenced with his participation in an interview on 21 January 2010. [43] The offender's participation in the interview provided ASIC with assistance in a number of ways: (a) he identified and explained conduct that he had engaged in; (b) he identified and explained conduct that he alleged Mr Curtis had engaged in; (c) he identified sources of evidence for ASIC to pursue in an investigation of possible offences; (d) his admissions were made voluntarily under caution with consequent evidential and not merely informational value; and (e) savings in ASIC's time and resources flowing from the assistance referred to in (a)-(d). [44] I believe that the offender was candid and truthful in interview. 45Mr MacAlpine made it clear that, in the absence of information being disclosed by the applicant, ASIC would not have identified the tipping offences nor would they have been likely to have obtained material that assisted them in the investigation as to whether Mr Curtis had himself engaged in insider trading. He fairly stated that without the assistance of the applicant, there would not have been sufficient admissible evidence to prove the tipping offences to the required standard in a defended prosecution. 46In relation to the final statement made by the applicant in February 2010, Mr MacAlpine said that the provision of this statement enabled the charging and prosecution of the applicant to be commenced earlier than it could otherwise have been. It saved ASIC from deploying resources to obtain most of the witness statements that would have been needed for a full brief of evidence against the applicant. Mr MacAlpine also made reference to the manner in which the applicant had given an undertaking to assist and give evidence in any proceedings against Mr Curtis. Although no decision had been made as to whether any charges would be brought against Mr Curtis, it was stated that the applicant would be a crucial witness in any future criminal or civil proceedings against Mr Curtis. He reiterated that the applicant had also provided information and assistance in relation to further matters in which it was not alleged the applicant had any involvement. This assistance was also provided on a voluntary basis. 47In the concluding portion of his statement, Mr MacAlpine said: [68] Since participating in the interview on 21 January 2009, the offender has at all times assisted ASIC in a timely and effective manner. [69] I consider that the offender has made a genuine effort to fully cooperate with ASIC's investigators and lawyers and to be full and frank in each interview he has attended. [70] The offender's disclosure of information to ASIC has included voluntary admissions as to his own involvement in conduct contravening the Corporations Act 2001. These included admissions by the offender that he communicated inside information to Mr Curtis which ASIC would have otherwise been unlikely to identify or be able to prove by admissible evidence to a required standard. ... [75] It is inherently difficult to obtain the evidence necessary to prove insider trading offences and for this reason it is of significant assistance to ASIC if persons voluntarily disclose details of their own conduct or the conduct of others. 48Mr Hartman gave evidence at the sentence hearing before the Sentencing Judge and submitted himself for cross-examination. In his evidence in chief, he confirmed the facts to which earlier reference had been made . He gave evidence that he had paid tax on the profits he made from the illegal trades and that he had openly conducted the IG Markets account in his own name. However, he agreed that he had lied in relation to the audit statements made to his employer as to whether he had been trading during the relevant period. At Appeal Book 69 the following passage occurs in his evidence in chief: Question: Alright. Now in terms of how you, shall I say, felt when you made CFD trades, in your own words, what were your feelings, shall I say, when you made these trades? Answer: The way that I was feeling around the time, I was in a very depressed state and the CFD trading gave a feeling similar to that of gambling. Question: And was that a good feeling? Answer: It was a rush of adrenalin similar to gambling. Question: Alright and did you make both big losses and big gains? Answer: Yes. Question: Sometimes after many hundreds of thousands of dollars at once? Answer: Yes. The applicant, in evidence, revealed a somewhat contrasting aspect of his life that ran counter to his illegal behaviour. During the time when it was occurring, he was working as a volunteer doing community work at Theresa House which is a shelter for homeless men. He would do this once or twice a month and the work required him to stay overnight, sleeping in a terrace in Redfern that provided emergency accommodation for twelve homeless people. The work was done by himself and another volunteer over a period of years. Secondly, he revealed that after he had lost his position with Orion and following his treatment at Northside Clinic, he had received the assistance and guidance of a Jesuit priest, Father Steve Sinn who was the parish priest at St Canices at Elizabeth Bay. In effect, following this, the applicant became the priest's personal assistant helping him especially with the parish work involving the care of homeless people and disadvantaged refugees in the local community. He worked in this capacity as a volunteer, wage-free for nearly two years. Father Sinn, as did others, provided a powerful reference at the sentencing hearing. 49The pre-sentence report prepared in June 2010 generally corroborated all the matters to which we have made reference. The Probation and Parole officer in charge, Ms Gloria Enfield, said in relation to the mental health issue: It appears that Mr Hartman first experienced feelings of depression during his later years of high school which corresponded with the time [when] one [of] his brothers became seriously unwell with a psychiatric illness, which was later diagnosed as bi-polar disorder. His depression remained untreated for several years, however after his illegal behaviour became known, Mr Hartman began treatment with a psychiatrist, initially twice weekly. In the past he has experienced feelings of suicidal ideation and he had begun to plan how he would suicide, although at the time of his interview with this service, he indicated he was no longer feeling suicidal...In January 2009 Mr Hartman was admitted to a residential psychiatric unit, where he stayed for three weeks while treatment was commenced. He has been diagnosed with a major depressive disorder and anxiety and remains on medication for these, as well as engaging in regular counselling. In the concluding part of the report, Ms Enfield said: Presenting as a cooperative albeit anxious person, Mr Hartman appears to have the benefit of stable formative years, raised by parents who remain emotionally supportive of him, despite their bewilderment of their son's offending behaviour. Inquires indicate that Mr Hartman began to experience depression when he was about sixteen years old, at about the time one his brothers developed a serious psychiatric illness. In his late teens, Mr Hartman developed a gambling dependency which in part has been a means, however dysfunctional, of his attempting to deal with his feelings of depression. His psychiatrist also believes his gambling dependence may have played a role in his cognitions in the workplace...He appears to have developed significant insight into what influenced his illegal behaviour and it is encouraging that he appears committed to maintaining the constructive changes he has brought to his life. The emotional support Mr Hartman receives from his family is also a positive element in his life.