The sentence to be imposed - considerations arising under the Crimes Act 1914 (Cth)
63 Section 16A(2) of the Crimes Act (Cth) provides "a check list" of the matters which the Court must take into account in the sentencing of Federal offenders. There is no need for me to set these out in detail since I have given consideration to the majority of the relevant matters in specific terms in these remarks on sentence. In particular, I have given consideration to the fact that the offender has shown remorse and contrition; has pleaded guilty to the charges at the earliest opportunity, and has co-operated with the law enforcement agencies during the investigation. I have accepted that the offender is rehabilitated and is unlikely to offend again.
64 As to the fact that the offender has no prior convictions and has led an unblemished life both professionally and personally, it has been said that good character is not as significant a mitigating factor in sentencing for white collar crimes as it is for other offences (R v El Rashid unreported Court of Criminal Appeal 7 April 1995). Although this is undoubtedly the case, it does not mean that the Court should lose sight of the good character of an offender, which nevertheless, remains a relevant factor in the sentencing process.
65 Section 17A of the Crimes Act 1914 provides that a Court should not pass a sentence of imprisonment in respect of a Federal offence unless the Court, having considered all other available sentences, is satisfied that no other sentence is appropriate in the circumstances. In this regard, Mr de Mestre submitted that the Court should impose a Community Service Order and a fine. While it is true that the offender has a compelling subjective case, the fact remains that these offences were objectively serious and were committed deliberately in the knowledge that they were breaches of the insider-trading provisions. Because of this seriousness, and the need to stress general deterrence in crimes of this kind, I am satisfied that a Community Service Order would be quite inadequate to deal with the matter. It is, I regret to say, my clear view that a custodial sentence of one kind or another is the only warranted outcome in the present matter.
66 There are of course a number of matters, which require a considerable degree of discernment relevant to the appropriate term to be imposed and as to the determination of the nature of the custodial sentence to be imposed. There is, first, the fact of the plea entered by the offender. The circumstances I have earlier described indicate that the offender is entitled to a reasonably generous discount for the utilitarian value of her plea and the fact that it represents a willingness to facilitate the course of justice. (Cameron v The Queen [2002] 209 CLR 339 at [13-14]; R v N P [2003] NSWCCA 195 at 25-27). The range of discount available for an early plea in relation to a State offence is discussed in R v Thomson & Houlton [2000] 49 NSWLR 383. Although that range was not expressed as applying to Commonwealth offences, it appears to me to be a reasonable approach to adopt the range in this matter (R v Bugeja [9(2001] NSWCCA 196 per Hodgson JA (with whom James and Adams JJ agreed on this point) at [28]. See also R v Simon [2003] 142 A Cr R 166 and R v Otto [2005] 157 A Crim R 525. I consider that the offender is entitled to a discount of 25% in relation to the sentence to be imposed on each of the three charges.
67 I have also made reference to the fact that the offender has paid $77,428 following an order made pursuant to the Proceeds of Crimes Act 2002. This is an appropriate case to find that the making of the consent order and the payment of the penalty show a further willingness to facilitate the course of justice in a matter connected to the offence. In addition, the payment may be seen to be further evidence of contrition and co-operation.
68 Both the Crown and Mr de Mestre agree that this is a finely balanced matter. It is, for that reason, a difficult discretionary decision to make. Having considered all the matters and the submissions made to me, I have come to the conclusion that, in relation to the first offence, an appropriate sentence, after discount for plea, is fixed term of imprisonment for nine months. In relation to the second offence, again a fixed term of imprisonment for nine months, after allowance for the plea, is appropriate. These two sentences, in my view should be served concurrently.
69 In relation to the third offence, I consider that an appropriate penalty, after allowance for plea, is a fixed term of 12 months. This sentence however, should be served partly concurrently and partly cumulatively with the earlier sentences. This is to reflect the fact that it was the third offence and occurred at a somewhat later time than the earlier two offences. In addition, there were three trades made in the third charge. It will be sufficient if the sentence for the third offence commences in three month's time. The overall effective length of the fixed term sentences will be 15 months.
70 There is no need to impose a fine in the present matter. Indeed, the Crown does not suggest that a fine be imposed. In view of the offender's good record and her undoubted rehabilitation, there is no need to make a Recognizance Release Order.
71 I should make it clear that the fixed term in each case is the equivalent of the non-parole period that would have been imposed, had a Recognizance Release Order been necessary.
72 The one remaining matter, and a critical matter, does require a careful level of consideration. This relates to the decision as to whether any of the available alternatives to full-time imprisonment should be utilised in the circumstances of this matter.
73 I have first given consideration as to whether the sentences to be imposed should be suspended. I have concluded, however, that the imposition of suspended sentences would send an inadequate message to the business and share trading community. It would not only give the appearance of inadequacy, it would, in fact, be totally inadequate. As I have observed in other matters, the real bite of general deterrence occurs only where an actual custodial sentence is imposed (see Howie J in R v Zamagias [2002] NSWCCA 17 at paras 29 to 32; and R v Boulden [2006] NSWSC 1274 at para 51 per Whealy J). In addition, there would be little achieved by the suspension of sentences in the present matter. The offender is fully rehabilitated and will not offend again. That consideration provides an additional reason why suspended sentences are not appropriate in the present matter.
74 The task that remains is to determine whether full-time imprisonment is appropriate or whether Periodic Detention may be the more appropriate.
75 One complication in relation to this issue arises out of the form of the report provided by the Department of Corrective Services Chatswood Branch on 15 March 2007. In that report Mr McDonald, the Parole officer said: -
"The offender is eligible but has been assessed as unsuitable for a Periodic Detention Order as per the requirements of s 66(1) of the Crimes (Sentencing Procedure) Act 1999 and s 65A ands 65B of the Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 . The reasons for unsuitability are as follows: on the advice of Mrs McKay's doctor, her symptoms, associated with Chronic Fatigue Syndrome and Meniere's disease would be exacerbated by the psychological stress associated with the experience of incarceration."
76 I expressed concern at this statement in Mr McDonald's report during the sentencing hearing. I asked for a supplementary report and this was provided on 23 March 2007. The supplementary report was more guarded in its conclusions. The District Manager Mr John Moir states: -
"Persons with life threatening illnesses are unsuitable. There is a requirement that a detainee be able to attend the centre as required and engage in light domestic duties. Detainees are locked in a cell overnight alone with only periodical supervision and need to be able to alert staff in the event of a critical situation by activating an emergency button located in the cell. Medical attention will then be arranged.
While medication may stabilise illness symptoms it appears from medical documentation held by the service that the offender would be placed at risk if located overnight in a periodic detention cell. However, it is recognised that Mrs McKay's ability to function adequately under the above Periodic Detention conditions, given her medical symptoms, needs to be based on a medical assessment. An offender undertaking a full-time custodial sentence with medical issues would be housed in the gaol hospital when circumstances dictate."
77 In my opinion, this latter report recognises that the earlier statement of unsuitability for Periodic Detention arose because Mr McDonald had apparently placed reliance on material from Mr McKay's doctor. Whatever the nature of that information, it certainly has not been provided to me. I have referred earlier to Dr Schoefell's medical opinions. They do not make any comment about the position of the offender, were she to be placed in Periodic Detention.
78 I do not consider that the report from Mr McDonald, qualified as it obviously is by the District Manager's later report, paints a conclusive picture that the offender is unsuitable for Period Detention. As is correctly observed in the later report, this is really a matter for a full medical assessment and such material has not been provided to me. Based on the whole of the evidence I have considered, I do not consider that the offender is unsuitable or unqualified for Periodic Detention despite the contents of the report dated 16 March 2007. In any event, I am not bound by the statement in the 16 March report (s 66(4)(a) and (b) of the Crimes (Sentencing Procedure) Act 1999.
79 I will shortly state my reasons. First, I am satisfied that the offender meets all the criteria set out in s 66(1). Indeed, recently on 27 March 2007, the offender signed a "Periodic Detention Undertaking". (see s 66(1) and clause 14 of the 2000 Regulations). The only "qualifications" appearing on this undertaking are that the offender's medical condition "is or may be an issue" and it stated that there are "other personal circumstances" that may be an issue affecting suitability. As to the latter, no details are given.
80 Secondly, there is no suggestion in the medical evidence before me that the offender suffers any life threatening illness or for that matter a very serious illness. I accept that Chronic Fatigue Syndrome, Meniere's disease and bursitis can be, to one degree or another, very unpleasant illnesses for the patient. They are susceptible to medication however, and, were the offender to be placed in a Periodic Detention facility, I have no doubt that medical aid could be summonsed to her if she needed it. I stress, however, that there is no suggestion in any of the medical evidence placed before me that she would be at serious risk in such a facility.
81 Thirdly, there is no evidence before me to suggest that the offender's health conditions would be exacerbated "by a psychological stress associated with the experience of incarceration". Nor was any submission made to that effect by her experienced solicitor. That, it will be recalled, was the thrust of the statement in Mr McDonald's first report. It seems to me that this observation is not substantiated by any medical evidence that has been placed before me. I do not doubt that the experience of incarceration, even in a Periodic Detention Centre, would be unpleasant and stressful for the offender. The offender suffers from a degree of depression arising from her Chronic Fatigue Syndrome and no doubt the circumstances in which she presently finds herself. She is however, being satisfactorily treated for this condition by way of appropriate medication.
82 Fourthly, while the state of health of an offender is relevant to the consideration of an appropriate sentence, this does not necessarily mean that a prison sentence should not be imposed or that the sentence should be less than the circumstances of the case would otherwise require (L (unreported NSWCCA 17 June 1996 per Gleeson CJ, Badgery-Parker and Hidden JJ). The nature and level of illness are highly relevant to this issue.
83 Fifthly, I think some care should be taken in assessing the contents of the Probation and Parole Reports particularly where the author of the report appears to have acted on untested information supplied to him or her. This is especially so when that information has not been relied upon in the sentencing proceedings before the Court. I do not think Mr McDonald was qualified to express the views he did. In any event, as I have said, the later report and the signing of the undertaking seriously qualify the observation in the earlier report.
84 Sixthly, there is nothing arising from the nature of the offences committed by the offender that would render her unsuitable for Periodic Detention. Indeed, detention of this kind has been ordered in the case of other insider trader offences in recent times (Frawley); (Rivkin).
85 I regret that this rather lengthy digression has become necessary. It did so because of the need to address the complication arising out of reports furnished by the Probation and Parole Service. May I return to the main thrust of these remarks on sentence.
86 In my view, there is ample justification for selecting an alternative to full-time imprisonment in the present matter. The important aim of general deterrence will be preserved if the sentences to be served by the offender are served by way of Periodic Detention. In all the circumstances of the present offence, Periodic Detention will reflect adequately the objective seriousness of the offences and at the same time, fulfil the proper purpose of punishment. There is no doubt that in choosing this alternative to full-time custody I am selecting sentences that are more lenient than full-time custody. Nevertheless, for the reasons I have expressed, particularly those based upon the strong subjective case of the offender and issues relating to her health, Periodic Detention will reflect appropriately recognition of the objective seriousness of the offences. It will, however, attenuate the punishment so as to take account of the matters I have mentioned, especially her health and her demonstrated rehabilitation in the period between 2004 and the present time. As to her health, I have no doubt that full-time imprisonment would be a more harsh experience for the offender than Periodic Detention. I accept that there is a gaol hospital facility available for full-time prisoners. In that sense, the Periodic Detention facility may not be as well equipped. On the other hand, there would remain an obligation on the prison authorities to make sure the offender is given her prescription medicines, if she needs them.
87 Although the offender has been shown leniency in relation to the type of custodial sentence to be imposed, I intend that the sentences I am about to impose should send a clear message to those in the business and share trade community that the Court simply will not tolerate offences of this kind.