R v Donaldson

Facts

1. I turn now to the relevant facts. The offender's role as a trader with the bank involved his trading in a range of financial products, including foreign exchange, and foreign exchange derivatives, including interest rate related products such a Bank Bill Futures, Bond Futures, swaps and options and equities futures.
2. Between 25 July 2013 and 25 June 2014, the offender made or caused to be made a significant number of entries into one of the bank's internal financial records, its risk management system, given the acronym RMS. In those entries there were made a number of false representations. The false representations were that the offender was responsible for profitable transactions in financial products including US Ten Year Treasury Note Futures and Eurex Euro-Bund Futures, and also his false entries related to the booking of "fixed cash flows" representing profits to the bank as a result of expired transactions, in particular financial products.
3. According to the statement of facts, the direct or indirect advantage that the offender sought to gain by recording these false transactions in the bank's RMS was primarily to increase falsely the apparent profit component of his profit and loss account and to mask his trading losses. That in turn would provide him with an indirect advantage as would enable him to firstly potentially meet his annual revenue budget; secondly, be eligible for larger bonuses, based on his apparent trading revenue; and thirdly, use his false profit and loss figures from his employment with the bank to promote himself should he wish to do so to a prospective employer. In short, the offender entered false entries in the records of the bank which indicated to the bank that he was actually earning for the bank more than he was supposed to, thereby increasing the amount of salary and bonus which he might earn in the future.
4. The Crown has submitted that the offender did so for the purposes of his own aggrandisement, in blunt terms, because of greed. The offender's position is that the position was not that simple and the reasons why he did so were much more complex. The offender was interviewed on Skype by Dr Olav Nielssen, a psychiatrist, on 13 November 2018. Dr Nielssen's report contains this history: "When asked why he committed the offence, he said 'people would look at it and say he is clearly [trying to help himself]...it is difficult to answer...I think it was the love of winning more than anything...I don't personally believe [the bonuses] were my main motivation...it was a factor...that is why you work 100 hours a week...but I was obsessed by the markets and economics.' He said 'It's a bit like the cricketers [accused of ball tampering]...you want to stay in the game and win at all costs...even though I knew it was totally incorrect...I also had these really strong views that my positions would play out...all my career I had been able to man up and own up to my losses...that last 12 months I was literally running on empty...I had positions for higher US interest rates and the US dollar...it came six months after I was fired'. He said "timing is crucial...but at the end of the day we sign these positions saying we will do everything by the book...but because my profit and loss was so volatile I became a bit insane keeping to these positions'." Essentially the offender adopted that position in his oral evidence and maintained it.
5. The offender described himself as a "macro trader" as distinct to a "day trader". A macro trader takes a longer term view of the market. A day trader only takes a very short-term view of the market. It is clear from the offender's role at UBS that he was a macro trader. That is confirmed by Mr Knight who clearly supported the offender's being employed by the bank and supported the offender for the year that they worked together, albeit that Mr Knight was in London in foreign trading. However, the bank's position after 2012 favoured day trading. This made it more difficult for the offender to reach budget and therefore posed a threat, firstly, to his keeping his job, secondly, to his earning bonuses, and to maintaining, not only his position with the bank, but also his reputation as a foreign exchange trader. The offender's investing strategy offered long-term profitability rather than short-term gain. However, to maintain his position he had to return figures that indicated short-term gain.
6. The offender told me, and I accept, that he only made the false entries when the market to him indicated that his investment strategy would put him in difficulties vis-a-vis his employer.
7. In the year 2013 the offender's annual revenue objective was 7 million euros. However, his profit and loss account showed a profit of 21.3 million euros. However, once all the false transactions were reversed, his true profit and loss was a profit of over 11 and a half million euros. In other words, although he had a budget of 7 million, he actually surpassed that budget, but falsely surpassed it by almost more than 10 million euros.
8. On 1 February 2013 the offender had been promoted by the bank to the position of director. His remuneration package was increased to $350,000 per annum, plus the usual annual bonus. For the 2013 year the offender received a cash bonus of $230,938; a equity upfront bonus of $230,939; a restricted equity bonus of $546,555; and a restrictive incentive bonus of $546,554. In short, his annual cash income in 2013 was $580,938 and he received other restricted or deferred bonuses amounting to almost $1.5 million.
9. On 5 February 2014 the offender's annual base salary was increased to $383,500, with a supplementary allowance of $100,000, together with eligibility for the annual bonuses. On 31 March 2014 the offender was given a revenue target of 10 million euros and an agreed annual budget of 6 million euros. By 3 July 2014 the offender's true year to date loss was over 17 million euros. Paragraph 50 of the Statement of Facts tells me that as a result of the offender's unsuccessful large short position in the US Treasury Note Futures and Options he suffered a significant trading loss of approximately 9 million euros which may have largely occurred in 2014.
10. Prior to the discovery of his misconduct, the bank wrote on 8 May 2014 a letter to the offender giving its approval for his being seconded to work for the bank in New York for two years, commencing on 1 July 2014. Had the offender taken that position he would have received an annual salary of US$550,000 and other benefits, including a bi-monthly allowance of $3,750 net to defray the increased costs of accommodation and tuition expenses for his children in New York. Since the offender's macro strategy was largely dealing in US dollars and US dollar futures, an appointment to New York would have been a feather in his cap. However, the appointment did not occur because the offender was placed on leave on 27 June 2014, once his misconduct had been detected.
11. The statement of facts comprises 34 pages of closely typewritten material. Much of it is completely irrelevant. It tells me how problems were ascertained, not merely describing the offending conduct. The agreed facts show 21 false entries which relate to Futures and Options transactions which were unable to be reconciled between the RMS of the bank and its other records, referred to as R & N, which I am told from the Bar table means Rolf and Nolan records, which are automated ledgers of transactions in futures. The first false entry was made on 25 July 2013. There was no further false entry until 19 August 2013, but then the majority of the transactions occur between 19 August 2013 and 24 October 2013. Only the final of those 21 false entries occurred in 2014, on 14 May.
12. Table 2 is a list of false "fixed cash flow" entries made by the offender in the RMS of the defendant which again could not be reconciled with the bank's R & N records. The first of those entries was on 15 August 2013. The second was on 12 October 2013. The third was on 29 October 2013, but the vast majority of them occurred between 6 February 2014 and 25 June 2014, shortly before the offender was stood down. In other words, the entries occupy a period from July to October 2013, and from February to June 2014, and represent times when the market was inhospitable to the defendant's macro trading. The offender told me, and I accept, that by the last quarter of 2014 his expected profits would have been realised but by then his services had been terminated by the bank.
13. All the false entries were reversible. The written submissions on behalf of the offender list 11 of the false entries which were reversed by the offender himself. They represent 52% of the total number of false Futures and Options transactions that the offender entered in the RMS. Clearly some transactions were questioned internally by the bank as the offender admitted and that led to his reversing at least some, if not all, of the transactions to which I have just referred.
14. As a result of the termination of his services the offender lost all the deferred bonuses which he had earned. Those included the deferred bonuses from 2012 when he had not misconducted himself at all. They included the two deferred bonuses and the equity upfront bonus given to him for the year 2013. For the year 2014, an incomplete year, no bonuses were attributed to the offender.
15. The false entries made by the offender were merely book entries. They could be reversed and eventually all of them were reversed. The only potential benefit for the offender in making these false entries are those which I stated earlier in these reasons.
16. When discussing s 16A(2)(d) and (e) of the Crimes Act 1914 (Cth), the Crown said this: "The offences did not directly cause any financial loss to Deutsche Bank. Nevertheless, Deutsche Bank should probably be characterised as a victim of the offender's conduct. The company was deliberately misled by the offender and as a result, the integrity of their official records was compromised." I accept that to be the case, but it must be pointed out that the compromise of the records of the bank was only temporary as they could all be restored to their pristine state and they were.
17. There was no loss to the bank, no loss to any of its customers, no putative loss to any of its shareholders. The only advantage which the offender may have actually gained for himself is the cash bonus that was paid to him in respect of the 2013 year, but the offender was in any event entitled to some bonus because his real figures had actually been greater than his budget. Neither the Crown or the bank has sought to establish what the offender's real bonus ought to have been in 2013, and one can accept that the cash bonus that the offender received in 2013 may be a real indication of his actual entitlement to bonus during that year.
18. In any event, there is no evidence that the bank has been one cent out of pocket, or had made one cent loss.
19. Going back to why these crimes were committed, I accept that the offender's motivation was not pure greed. However, the offender's motivation was self-interest, self-interest in maintaining his position, keeping the bonus flowing in the expectation that in the long-term he would make the profits sought of him and could reverse the false entries. Had the bank delayed another six months, all the false entries might well have been reversed. However, that is a matter of speculation. However, that appears to have been what the offender intended.

Seriousness (1)

1. The extent of the advantage the offender gained for himself must be a relevant consideration in sentencing for this offence. Learned counsel for the offender referred to the lack of any loss to the bank as being of significance, but, as learned counsel for the Crown pointed out, that is irrelevant because the charge is not causing detriment to the bank, but gaining an advantage for himself. If one needs any authority for that proposition one need only go to DPP (Cth) v Northcote [2014] NSWCCA 26 at [86] and [90]-[92]. Whilst I accept that the suffering of a detriment is not relevant strictly speaking, when one looks at someone else's taking advantage often an advantage to one person is a disadvantage to another or a detriment. Factually it can be relevant. When I look at the "advantage" which the offender obtained, I look at an illusionary concept. There is no evidence which in any way might quantify the advantage which the offender obtained. Rather, the evidence is all of significant disadvantage that the offender suffered.
2. In such circumstances the offender's misconduct, where the advantage that he sought to obtain was not received, the extent of the punishment to be visited upon him for his misconduct is attenuated. His moral culpability is not attenuated, but the extent to which his conduct requires condemnation and punishment is attenuated.

Effect of the misconduct

1. The offender's misconduct has led to, literally, ruin. The first thing to note is that the offender has cooperated with the due administration of the law. His misconduct was detected by the bank's compliance staff on 26 June 2014. He was interviewed on the following day. He made admissions as to his misconduct. He was then placed on administrative leave. He participated in further interviews with bank staff on the 3rd, the 15th and 30 July 2014. As I have earlier mentioned his services were terminated on 1 August 2014. It is accepted by the Crown that the offender made admissions of his misconduct to the bank on the 3rd, the 15th and 30 July 2014.
2. On 25 September 2014 the Australian Securities and Investments Commission (ASIC) requested the offender to attend for an interview. That in fact was a compulsory interview. That took place on 15 October 2014. The offender was interviewed for a whole working day. He admitted his misconduct. Thereafter ASIC took a relatively leisurely course. An administrative hearing was conducted in February 2016, some 15 months or more later. On 29 September 2015, some seven months later, ASIC placed upon the offender a permanent banning order preventing the offender from ever again working as a trader. In December 2016 ASIC wrote to the offender advising him that it was still considering pursuing him for the costs of their investigation of his misconduct.
3. The next thing that occurred is that ASIC served a court attendance notice, charging the offender with the misconduct for which he now stands for sentence. The court attendance notice was served on 20 December 2017. The offender pleaded guilty in the Local Court on 31 July 2018 and last Friday was the first date on which the offender's matter was listed for sentence.
4. Not only was ASIC interested in the offender's misbehaviour, so were the media. In exhibit 2 the offender told me this: "The highly visible public shaming of me via the media covering my case since 2014 has taken a severe toll on me, my family and my ability to provide a basic income for them to survive. This has had a negative mental impact on my wife and I, which has required us to undertake therapy and to establish tools to deal with daily life. I love my wife and my family more than anything, so the additional stress I am under to provide a living for them comes at great toll currently." The offender's wife in her letter to me, exhibit 4, noted a resurgence of media interest in the offender's case more recently. In that she said this: "This however wasn't the end. In December 2017 he was served with criminal charges on top of this [ASIC action]; more horrendous press coverage ensued and then all the costs and the stress of this next level of fear and dread escalated. The criminal charges laid against my husband for his own actions have brought to our life an even more overwhelming change that has been so impactful and distressing on so many levels, it is hard to explain." Other evidence before me is that the adverse publicity that the offender suffered can still be found on the internet if one merely Googles the offender's name. That has made it almost impossible for the offender to obtain any meaningful employment. The effect of that on the offender and his family has been ruinous, to repeat a word I have earlier used.
5. The offender and his wife had a property in New Zealand. They sold that in 2014 in order to seek to survive in their home in Sydney. There was no income to support the family and the mortgage and the offender could not earn any money. However, they had to sell the family home in Sydney in 2015 in order to have some capital on which to subsist. However, they could not continue to live in Sydney and in July 2018 the family moved to a rural area in the Hawke's Bay region of New Zealand: the largest nearby centre is Napier.
6. The offender's wife had her own business in Sydney but that is now gone. She is working fulltime as a real estate agent in New Zealand. The offender found work in Madrid for three months working in information technology. His absence from his family was a countervailing blow to the boon of finding some meaningful employment. More recently the offender again found employment in the IT industry in Paris in November 2018 and that employment was only suspended because of the need of the offender to return to Sydney for sentencing. If he be free to do so, the offender intends to return to Paris to take up that work again on 22 February this year. The offender referred to his work as being essentially data analysis. He has made about 100 different applications for work. Only that work in Europe has been work that he has been able to find. The only other work is rural work, driving and working as a labourer in New Zealand in more recent times.
7. The effect of the offender's own misconduct is, as I have said, the cause of ruin to him, his finances and his family.

Character

1. The offender comes before this Court as a man of prior good character. Both the offender and his friends tell me that he had a drink driving charge made against him in New Zealand when he was at university. However, the official records from New Zealand say that he has no conviction. There is no evidence that he has been convicted of any offence anywhere in the areas in which he has lived, the United Kingdom, New Zealand, Australia and more recently Spain and France.
2. He is entitled to the benefit of having been a man of prior good character. The Crown submission is that I should give little weight to his prior good character. The Crown's written submissions contain this: "The offender is 51 years of age. He may be regarded as a person of prior good character. The Crown submits that this factor ought to be given little weight because the offending persisted over approximately a year and was able to occur because the offender's prior good character enabled him to occupy the position of trust and responsibility of his employment. His good character was instrumental to his ability to commit the offence. "
3. There are a number of areas of offending behaviour where prior good character is said to be of little utility to a person standing for sentence. A classic example of that is a drug courier, a person who because he or she has no prior conviction and can be regarded as of good character carries illicit drugs into Australia from overseas in the expectation that he or she will not be detected in his or her carrying illicit substances. If a person has a prior record, then he or she is more likely to be queried at Immigration on entry into Australia. In those circumstances prior good character cannot be given the weight it normally is given, because if the person were not of good character he or she would not have been chosen to be a drug courier. It has sometimes been said that the prior good character of a clergyman or other professional dealing with children is not to be taken into account in considering child abuse. There are now statutory provisions concerning that. However, a person who for many, many years does not offend, but then because of some lapse does offend, as a general proposition is entitled to have his or her prior good character taken into account.
4. On the evidence before me, the offender had been working for banks as a foreign exchange trader since 2005. He offended in 2013. He did not succumb to temptation for at least eight years and there is no suggestion that any of his movements from one bank to another was because of any misconduct on his part. In those circumstances in my view the offender's prior good character can be taken into account. I should point out that it was taken into account by the Court of Appeal of Queensland in The Queen v Fellowes [2018] QCA 238.

Breach of trust?

1. Generally a crime which also involves a breach of trust is said to be aggravated by the breach of trust. However, this is not such case. The charge itself involves an allegation of breach of trust. It involves the allegation of a breach by an employee of his fiduciary duty to his employer. The fact that this crime can be said to be a "breach of trust" does not make it worse. It is of the nature of the offence itself.

Duration of offending

1. In discussing the objective seriousness of the offence, the Crown submitted that the length of time over which the offence was committed is indicative of a significant offence. However, when one looks at the authorities, one can see offending conduct happening over periods of seven years or more. Here the offending was over a period of 12 months.

Planning

1. The Crown also submitted that the degree of planning, premeditation and concealment involved also indicated that this was a serious crime but it must be pointed out that the offender's entries were all made in his own name. Therefore the source of the false entry was readily identifiable. Indeed it would be hard to see how the dishonesty which the offender was seeking to practice could occur if he had made the entries in somebody else's name. The entries had to stand to his own benefit. In other words, this was not a highly planned or concealed crime. This was a crime which could be relatively easily detected by adequate auditing.

Seriousness (2)

1. In my view, the extent of the offending conduct is below the midrange of objective seriousness for an offence of this nature. The authorities make it clear that in cases of "white collar crime" general deterrence is of significance. Those engaged for example in banking, or finance, or insurance who commit what could be described as "white collar crime" should suffer condign punishment and punishment that ought warn others that they should not go along the same path. For the "sleek banker" a period in gaol is a horrible prospect. Such a penalty can be readily accepted by most in the position of a "sleek banker" as a prospect too horrible to contemplate. Thus, the theory is that they will not commit white collar crime.
2. However, here the law has taken its course in another direction. By the ASIC proceedings, the offender has been banned for life from working as a trader in Australia. One can readily accept that that disqualification would apply de facto to employment in other areas of the Commonwealth, such as New Zealand, Canada, and the United Kingdom, probably South Africa, and would also apply for example in other common law countries, such as the United States of America and would probably also be applied de facto by the countries of the European Union. In other words, the order banning the offender for life from working as a trader in Australia would affect the offender's ability to work as a foreign trader anywhere in the world.
3. The policy of the law is that when a prisoner has served his time he can return to the community and hopefully lead a life as a good citizen, having paid for his crime. Barristers who are disbarred, or solicitors who are struck off the roll, or medical practitioners who are removed from the register of practitioners are always entitled to reapply for admission to their original profession if they can satisfy the appropriate regulatory authority of their ability to do so. Mr Donaldson does not have that opportunity. He has been permanently removed from the career which he started forging for himself when he went to the University of Otago at the end of his secondary schooling.
4. In other words, the general deterrence has here been effected by the action of ASIC and I accept that all foreign traders who had experienced what this offender experienced would be deterred from doing so, even without the offender having been dealt with by the criminal courts.

Delay

1. Another factor which arises in this case is that of delay. Delay was discussed at some length by Latham J in R v Donald [2013] NSWCCA 238, commencing at [28]. Her Honour referred to the Western Australian Case of Scook v R (2018) 185 A Crim R 164. Her Honour said this: "44. McClure JA helpfully reviewed the authorities relating to the significance of delay and concluded: [31] The authorities support the following propositions. Delay itself (mere delay) is not mitigatory. Delay in combination with other relevant sentencing factors favourable to the offender, such as progress towards rehabilitation, is mitigatory. In those circumstances delay is facilitative or causative but not itself mitigatory. As a consequence, the reason for the delay is not ordinarily relevant. It may be so if the delay was attributable to the offender.... [32] It is not possible to identify all factors which in combination with delay will be mitigatory. It will depend on the circumstances. For example, in Schwabegger and Duncan, the delay contributed to a legitimate expectation that there would be no prosecution on which the offenders acted. [33] It is the case that in the period prior to conviction and sentence, an accused is left in a 'state of uncertain suspense' which for many offenders (certainly those with prior good character) would be significantly stressful. However, that is a consequence of the involvement of the criminal justice system and is not ordinarily mitagatory… 45. Buss JA, in the same case, agreed with these comments and made some additional observations, including that: [59] Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating, or proving the offences committed by the offender, and the period of delay is reasonable in the circumstances. [60] Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of cooperation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of cooperation for this purpose. [61] Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes. [62] Fifthly, delay may be conducive to the emergence of mitigating factors: For example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her had emerged. [63] Sixthly, delay (not being delay of the kind described in the second, third or fourth guiding principles) will ordinarily be a mitigating factor if: (a) the delay has resulted in significant stress for the offender, or left him or her, to a significant degree, in 'uncertain suspense'; or (b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation. [64] Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of a sentence that would otherwise be imposed on the offender, if the Court thinks it an appropriate means of marking the disapproval of the conduct in question'."
2. Learned counsel for the offender also referred me to the recent discussion of the same matter by Bellew J in Sabra v R [2015] NSWCCA 38, at [36] - [37], which I will not repeat, but they reinforce what I have already quoted from the judgment of the Western Australian Court of Appeal in Scook.
3. Here after he received the banning order on 29 September 2016, the only further communication the offender received from ASIC was a letter concerning costs in December 2016. A year later he was served with the court attendance notice, charging him with offences, the last of which occurred in June 2014, some three and a half years previously. The action of ASIC was certainly dilatory. The offender had admitted his misconduct in 2014. He could have been charged at the same time as the internal investigation conducted by ASIC. He was not. I accept that in the interim the offender was left in uncertain suspense as time passed. After his disqualification one would think the prospect of his being criminally charged would become less and less. Nevertheless over a year later he receives a court attendance notice. Furthermore, in the meantime, he managed to find himself some meaningful work, albeit that it was overseas, and the offender has had to interrupt that work to return to Australia for this sentencing hearing. In other words, he had ordered his affairs to overcome the detriment he suffered by the loss of his job by working overseas in meaningful work to obtain the wherewithal to support his family. In the circumstances the delay should be seen as mitigatory because it interfered with the offender's attempts at rehabilitation in finding meaningful work which he could use to support his family.

Personal circumstances

1. I turn briefly to the offender's personal circumstances. They have been largely pointed out already. The offender and his wife have three children, a son aged 15 years, who is currently in Napier Boys' High School, a daughter, aged 13, who is currently attending Napier Girls' High School, and a son, aged nine, who is currently in a local primary school in the Hawke's Bay area. Those children were living and being educated in Australia prior to the family's move back to New Zealand in July last year. They see themselves as "Aussie kids" who have been taken out of their school and planted in a country which may seem a little foreign to them, although one can readily adjust to life in New Zealand, as many New Zealanders adjust to life in Australia. However, the children have suffered a major upset in their adolescent lives, leaving behind schools and friends and institutions which they know, to set up another life elsewhere.
2. The need for the offender to be present to support his children during this time is important. Unfortunately, the authorities do not permit me, as they currently stand, to take into account the impact of the offender's position on their lives. If the offender otherwise ought be sentenced to imprisonment the effect of that imprisonment on his wife and children cannot be taken into account, although there was textual authority to that effect in the Crimes Act 1914, but the case law is against the proposition to which I have just referred.
3. The important point about the offender's personal circumstances is that he does have these children to whom he is committed and whom he must do his best to support. The evidence points to the fact that here in Australia the offender coached the Clovelly Eels Rugby Club team, in which his elder son was a member; that he also coached other rugby teams; that he joined the Clovelly Surf Lifesaving Club and qualified himself as a lifesaver in order to assist with his own children's progress through the Nipper programme; that he has actively supported his children when they were going through local scout groups, participating in fundraising activities and the activities of the scouts themselves, including camps. The evidence provided in the large number of references points to his being not only a loving and committed father, but a man who is prepared to take a meaningful role in the community and work to assist not only himself and his own children but other members of society, such as beach users at Clovelly and other children who are playing rugby or in the scout movement. In other words, prior to the commission of these offences, the offender might have been seen to be an outstanding member of our community. From the evidence I have heard, I am confident the offender would take up such roles again, if circumstances permitted.

"Comparable" cases

1. The sentencing hearing was largely taken up with looking at cases which might be thought to be "comparable". The Crown referred me to Kwok v R [2007] NSWCCA 281; DPP (Commonwealth) v Northcote, to which I have already referred; R v Donald, to which I have already referred; The Queen v Duffy (Victorian County Court 15 June 2005), a decision of Chettle CCJ; R v Gray (Victorian County Court, 6 April 2006) another decision of Chettle CCJ; and R v Zerafa [2013] NSWCCA 222. The defence relied in particular on the case of The Queen v Fellowes to which I have already referred.
2. The cases referred to by the Crown are all distinguishable. In Kwok the offender was charged with two charges of the dishonest use of his position as a director with the intention of gaining an advantage for two other companies with which, through family members, he was associated. The sentence imposed in that case was 15 months periodic detention. The duty of a director is greater than the duty of an employee.
3. In Northcote a sentence of three and a half years imprisonment was imposed with a two year non-parole period. Northcote involved the misuse of a position of a director. Again benefits were derived for his own companies. One company received a benefit of $1.566 million. The offender himself received a little over $1.1 million. The offender was disqualified from managing a corporation but that disqualification was only for a period of five years. That offenders misconduct was much greater than that of the current offender.
4. The offender in Donald manipulated accounts in share trading such that he made for himself a profit of $1,320,374 but caused losses to his own clients of $749,333.67. He was sentenced to imprisonment for two years with a one year non-parole period.
5. The Victorian cases of Duffy and Gray arose out of the same factual background. Duffy was the head trader and chief dealer in foreign exchange options at the National Australia Bank. At [6] his Honour said this: "You and your team discovered a window of time between the end of day procedures and the Capiti processing that enabled you, Bullen, Gray and Vicara to generate fictitious profit from false one-sided internal foreign exchange spot trades that would not be detected and that would cause false profit figures to record in the National Australia Bank profit and loss accounts." The misconduct was eventually detected. However, at [15] his Honour recorded this: "Your trading losses rapidly escalated. The accounts, thanks to your dishonest activities, indicated a $17,941,000 odd trading profit. Your false entries generating a false profit of $178,561,516 meant that the truth was that the National Australia Bank suffered a loss of $160,620,000 approximately as a result of the foreign exchange trading. I emphasise that this loss is not the subject of any criminality, it is the concealment of that loss by dishonest means that is the subject of counts 1 and 3." The concealment of the bank's losses could directly affect the value of the bank's shares and the bank's reputation. The purpose of the false entries was to make large bonuses. In Duffy the offender repaid the overpaid bonuses. His Honour then said this: "Admittedly such payment has been made at the eleventh hour, however I take into account in your favour the fact that at considerable cost to your family personally you hadve in fact returned your ill-gotten gain." There is no evidence here that the offender made any gain at all.
6. His Honour sentenced Duffy to imprisonment for 29 months and fixed a release on recognizance after 16 months. The sentence for Gray who was involved in the same scheme was less, a head sentence of 16 months and release on recognizance after eight months.
7. In The Queen v Fellowes sentences of imprisonment were imposed but they were all wholly suspended on the basis that the offender entered into a recognizance giving security in the sum of $30,000 on condition that he be of good behaviour for a period of five years. Fellowes' offending was, again, in my reading of the case more significant than that of this present offender. Towards the end of his judgment Fraser JA, with whom Philippides and McMurdo JJA agreed said this: "There was here an unusual combination of circumstances, in addition to the particular circumstances which are not rare, the early guilty plea, genuine remorse, adverse consequences to the respondent resulting from his offending, and his otherwise good character, there are here the more unusual circumstances that none of the respondent's victims suffered any quantifiable loss, the respondent had not re-offended for some seven years after these offences, although he continued in the same occupation, holding positions of trust for a substantial part of that time, and the respondent's cooperation with authorities extended to a willingness to cooperate in relation to other matters." Many of the circumstances of that case are present in this case.

Consideration

1. Really there is little difference between the stance taken by the Crown and the submissions of the accused. I have already quoted the ultimate submission of the Crown that a sentence of imprisonment was called for, but that sentence should require the offender serve "part of the sentence" in fulltime custody. The defence agrees that a sentence of imprisonment is on the authorities the appropriate sentence but submits that the sentence ought be wholly suspended.
2. This is a very unusual case of "white collar crime". The fate suffered thus far by the offender would be adequate general deterrence for anybody in the same position considering taking the same course of action. The offending was well below the midrange of objective seriousness. The offender has suffered much already. I have come to the view that this is an appropriate case in which to suspend the sentence.
3. As I said the maximum penalty for this offence is imprisonment for five years. This is below the midrange of objective seriousness. The appropriate commencement point for the sentence is two years imprisonment. I discount that by 25% for the utilitarian value of the offender's plea of guilty and for his assistance in the administration of justice by making admissions of his misconduct both to his employer and to ASIC. That reduces the sentence to 18 months imprisonment.
4. The offender can be released on recognizance on his giving security in the sum of $10,000 on the condition that he be of good behaviour for a period of two years.
5. Andrew David Donaldson, on the charge that between about 25 July 2013 and about 25 June 2014 at Sydney in this State you did use your position as an employee of Deutsche Australia Limited dishonestly with the intention of directly or indirectly gaining an advantage for yourself, you are convicted. I sentence you to imprisonment for a period of one year and six months commencing today. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released forthwith upon giving security by recognizance in the sum of $10,000 to be of good behaviour for a period of two years.
6. HIS HONOUR: All right, any other orders sought? WILLIAMS: Your Honour I'd ask an order pursuant to s 3ZL for identification of the offender. HIS HONOUR: Wouldn't that already have been done? WILLIAMS: From what I understand it wasn't done because he wasn't actually arrested. CAMERON: There's no objection. HIS HONOUR: All right. I take it photograph and fingerprints? WILLIAMS: Yes, both your Honour. HIS HONOUR: Mr Donaldson, pursuant to the Crimes Act 1914 (Cth) s 3ZL I order that you attend a police station within one month of today to allow impressions of your fingerprints and a photograph of you to be taken. Any other orders now? WILLIAMS: Generally we specify the station. Perhaps Surry Hills. HIS HONOUR: All right, the Act doesn't require me to specify a police station. I mean Mr Donaldson and his wife are here staying at a hotel. I'm sure they probably want to go back home to the kids before he needs to go back to France, is that right Mr Donaldson? So they'll probably go to the closest one as quickly as they can.

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