Criminal law - Sentencing - Offences under Corporations Act 2001 (Cth) s 998, s 1311 - Relevance and weight to be accorded to delay - Whether sentence manifestly excessive

Corporations Act 2001 (Cth), s 998(1), s 998(5), s 998(6), s 1041(B), s 1311(1), s 1317S

Crimes Act 1914 (Cth), s 16A(1), s 16A(2)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 59

Application for leave to appeal against sentence granted

1 McLURE JA: The appellant applied for leave to appeal from his conviction and sentence on 158 counts of breaching s 998(1) and s 1311(1) of the Corporations Act 2001 (Cth) (Act). At the commencement of the hearing, the appellant by his counsel informed the court that he did not intend to pursue his application for leave to appeal against conviction. A search of the court file shows that on 31 March 2008 the appellant filed a notice of discontinuance of the appeal against conviction under r 59 of the Supreme Court (Court of Appeal) Rules 2005 (WA). That leaves for consideration the application for leave to appeal against sentence.

2 The appellant, together with Jeffrey Braysich, stood trial in the District Court on an indictment containing 285 counts of alleged breaches of s 998(1) of the Act. The appellant was charged on 259 of those counts of which 100 were put in the alternative. The counts concerned trading on the Australian Stock Exchange (ASX) in shares in Intrepid Mining NL (Intrepid). Section 998(1) prohibited a person from creating, or doing anything that is intended or likely to create, a false or misleading appearance of active trading in any securities on a stock market.

3 Of the 259 counts, 85 alleged that the appellant 'created a false or misleading appearance of active trading'. In proof of these counts, the prosecution relied upon the deeming provision in s 998(5) of the Act. In his defence, the appellant relied upon the lack of purpose defence provided in s 998(6) of the Act which required him to establish on the balance of probabilities that his purpose did not include the purpose of creating a false or misleading appearance of active trading. The appellant was found guilty on 63 of these counts

4 The remaining 174 counts alleged that the appellant 'did something that was likely to create a false or misleading appearance of active trading'. In proof of these counts, the prosecution relied upon the nature and volume of the share trading. In his defence, the appellant sought to raise doubt that the conduct was likely to create a false or misleading appearance of active trading. The appellant was found guilty on 95 of these counts.

5 The learned sentencing judge imposed on the appellant a head sentence of 3 years' imprisonment and ordered that the appellant be released after serving 14 months upon entering into a recognisance of $5,000 to be of good behaviour for the balance of the term. The grounds of appeal (excluding particulars) are as follows:

1. In his determination of the sentence to be imposed on the appellant ... the learned sentencing judge erred in finding with respect to the appellant's conduct - '[i]t is not possible to determine its consequences to the market generally, but it is probable that a number of innocent investors would have been disadvantaged.'
2. The learned sentencing judge failed to give sufficient weight to the effect of the delay between the commencement of the investigation and the conclusion of the matter on issues of fairness, rehabilitation and general deterrence.
3. In his determination of the sentence to be imposed the learned sentencing judge erred in finding and holding that 'having regard to the verdicts of the jury, it was open to you to bring the matter to conclusion at a much earlier date'.
4. The sentences imposed are each and all manifestly excessive.

6 The appellant was the instigator of a scheme and coordinated the buying and selling of millions of shares in Intrepid on the ASX in the period 2 January to 27 February 1998. The charges related to trades on almost every trading day in that period and involved total shares in excess of 11 million. The appellant coordinated the trading by giving buy or sell instructions to different brokers on 13 share trading accounts he was authorised to trade on and by causing a group of six traders to place buy and sell orders with their brokers on their accounts at his direction.

7 The sentencing judge made the following findings. Finance for the share trading was provided in part by Walthamstow Pty Ltd. The finance was advanced to entities associated with the appellant, including Challiston Pty Ltd, for the purpose of buying shares. Walthamstow held the shares by way of security and on trust for Challiston and other borrowers. On a number of occasions, Intrepid shares were transferred on market from Walthamstow to Challiston. These are described as 'wash trades' being an on market trade that involves no change in beneficial ownership of the shares. A 'matched trade' is where there is an offer either to buy or sell shares at a specified price knowing that another person proposed to make an offer to buy or sell the same number, or substantially the same number, at a price which was substantially the same.

8 After referring to the wash transactions between Walthamstow and Challiston, the sentencing judge continued:

Additionally, you organised a group of investors or traders who, subject to your encouragement and/or direction, would buy or sell Intrepid shares or alternatively gave you the capacity to buy or sell Intrepid shares in their name and on their broker account. Without their knowledge, you were on the other side of the transaction.

There were, inter alia, washed and matched trades. In the result, you were able to create an appearance of considerable investor interest in and transaction volume on the market with the clear intention that there would be a resultant increase in the price of the shares and the profit you would subsequently realise, particularly from placement shares.

9 The evidence established that the appellant was to receive 2.05 million Intrepid shares at 50 cents per share in a placement scheduled to take place on 27 February 1998. On 26 February 1998 the shares were trading at $1.39. The sentencing judge continued:

The sales of Challiston shares held by Walthamstow were transacted by Mr Braysich of Paul Morgan Securities. In the end, your scheme was of adverse financial consequence to Challiston, Paul Morgan Securities, and a number of the investors. It is not possible to determine its consequence to the market generally, but it is probable that a number of innocent investors would have been disadvantaged.

It amounted to a carefully considered and executed deception that necessitated repetitive wrongdoing for its effectiveness. The evidence discloses that over 11 million shares were transferred as a result of your activities and your trading constituted over 50 per cent of the total trading in Intrepid shares during the period with which we are concerned. On some days you were responsible for more than 80 per cent of the total trade.

On a number of occasions, there were end of trade crossings which were clearly designed, as I find, to set the market price. I accept the crown's submission that the scheme was complex, difficult to detect, and involved considerable effort and guile on your part for its implementation. The evidence is eloquent of the fact that you intended by your actions to mislead the commercial community as to the fiscal standing of Intrepid.

10 End of trade crossings are transactions completed within minutes of the close of trading which set the market price for the next day. Later in his reasons the sentencing judge characterised the appellant's conduct as 'misleading, deceptive, repetitive, and calculated to and having the potential to adversely affect the investing community generally'.

11 The appellant's counsel acknowledged that ground 1 only raises an appealable error if the sentencing judge took into account, as a factor that was adverse to the interests of the appellant, that a number of innocent investors would have been disadvantaged. That would be an error in the absence of a finding beyond reasonable doubt that innocent investors were so disadvantaged: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

12 It is apparent from the statement complained of in the context of the reasons as a whole that the sentencing judge did not rely on the probability of innocent investors being disadvantaged as an aggravating factor. Later in his reasons he refers to the appellant's conduct having the potential to adversely affect the investing community generally and later again states '[i]t is not possible to identify the adverse consequences of your behaviour on the investing community generally'. This is an acknowledgement by the experienced sentencing judge that he could not take into account an adverse matter established only on the balance of probabilities. In context, the statement complained of is a comment or observation and was not taken into account as an adverse or aggravating factor. I would dismiss ground 1.

13 The trial of the appellant commenced on 22 October 2007, nearly 10 years after the offences were committed. He was convicted on 10 November 2007 and sentenced on 23 November 2007. In February 1998 the ASX referred to ASIC the possibility that the appellant had breached his obligation to lodge a substantial shareholder notice relating to his shareholding in Intrepid. After investigations were conducted by ASIC, including s 19 examinations of the appellant and other witnesses, it became aware of the nature and scope of the possible breaches of s 998 of the Act. The appellant was charged on 18 December 2002. After the committal mention brief had been served on the appellant and Braysich in April 2003, Braysich obtained an order nisi for a writ of prohibition in the Supreme Court of Western Australia claiming lack of jurisdiction to pursue the prosecution. On 11 January 2004 the Supreme Court dismissed the order nisi: Re Woods; Ex parte Braysich [2004] WASCA 120. In March 2005 Mr Braysich gave notice of his intention to apply for a separate trial. On 2 September 2005 a District Court judge ordered separate trials. The Crown appealed the decision. The appeal was allowed on 26 October 2006: R v Braysich [2006] WASCA 220. In November 2006 the trial was listed for an eight week hearing commencing on 22 October 2007. Around this period and thereafter the appellant made admissions as to the occurrence of the individual transactions which had the consequence of significantly shortening the trial.

14 The appellant's contention is that the sentencing judge failed to give sufficient weight to the effect of the delay between the commencement of the investigation and his conviction. It is apparent from the sentencing judge's reasons that he took the delay into account. He said:

I also take into account the delay in this matter being heard, although that is substantially explained by the nature of the charges and the interlocutory interruptions.

Also, having regard to the verdicts of the jury, it was open to you to bring the matter to conclusion at a much earlier date.

15 A failure to give sufficient weight to a relevant sentencing consideration only gives rise to an express appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330 approving the statement of Gibbs CJ in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614. That high threshold is not met in this case. However, it is convenient to address the relevant principles at this stage because its relevance and weight are matters to be considered when determining whether the sentence is manifestly excessive.

16 Delay itself is not one of the mandatory sentencing matters listed in s 16A(2) of the Crimes Act 1914 (Cth). Its relevance or otherwise to the sentencing of Commonwealth offenders will depend on the circumstances of the case. The principles articulated by State courts in sentencing State and Commonwealth offenders serve as a guide.

17 For the purpose of understanding the relevance of delay, it is necessary to put to one side those cases in which delay and the totality principle intersect: Mill v The Queen (1988) 166 CLR 59; R v Todd (1982) 2 NSWLR 317; Barnes v The State of Western Australia [2004] WASCA 258; Mills v The State of Western Australia [2007] WASCA 118.

18 The appellant relied primarily on decisions of the Victorian Court of Appeal, particularly R v Schwabegger [1998] 4 VR 649 and R v Merrett [2007] VSCA 1; (2007) 14 VR 392.

19 In Schwabegger, the offender was convicted, following his plea of guilty, on five counts of defrauding the Commonwealth by falsely representing his income to the Commissioner of Taxation in five income tax returns for the years ended 30 June 1984 to 30 June 1988. He had failed to declare cash payments totalling $560,940. In 1991, following an investigation by the Australian Tax Office, the offender agreed to pay $280,323.95 in tax and $283,532.19 in penalties. He was not charged until January 1997 having paid in full the tax and penalties in 1992. The sentencing judge imposed a sentence of 2 years' imprisonment and ordered he be released after serving 4 months. The appeal was upheld on the ground that the sentence was manifestly excessive. The majority (Kenny JA and Vincent AJA) came to this conclusion having regard to all of the circumstances of the case including, in particular, 'the lengthy and substantially unexplained delay between detection by the authorities and ... prosecution (655)'. The delay was described as 'extraordinary'.

20 Other weighty factors in the conclusion that the sentence was manifestly excessive were that the offender had paid the tax and penalties and that when settlement occurred, offences of the kind committed were dealt with without criminal prosecutions as a result of which 'the applicant may well have been led to believe that he had set about his rehabilitation and that he might thereafter order his affairs upon the basis that he would no longer be pursued by the authorities with respect to his earlier offending' which impression was 'no doubt confirmed by each passing year in which no charge was laid against him (656)'.

21 The implication in Schwabegger is that delay is a mitigatory factor where it is due to dilatoriness or neglect on the part of the State or its instrumentalities. That may be because of the unreasonable period in which the accused is left in a state of 'uncertain suspense' (R v Todd (519)) or because the court wishes to express its disapproval by imposing a more lenient sentence or both.

22 In Merrett, three offenders were each convicted on two counts of motor vehicle theft after unsuccessfully raising an alibi defence. Almost three years had passed between the commission of the offences and the laying of the charges and a further two years passed before the offenders came to be sentenced. Each offender was sentenced to a total effective sentence of 4 years' imprisonment with a non-parole period of 2 1/2 years. The Full Court held that the trial judge's sentencing discretion had miscarried because the inordinate delay of 5 years and the evident rehabilitation of the offenders in that time had been given almost no weight. The total effective sentence was reduced to 3 years. The delay between the commission of the offences and the laying of the charges was described as 'quite extraordinary (399)'. The President (with whom Chernov JA and Habersberger AJA agreed) said:

On a proper analysis, however, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable. But the absence of an explanation for the delay could not, by itself, justify any greater reduction in the sentence than would be made in a case where the delay was satisfactorily explained [34]. (footnotes omitted).

23 Delay was said to be relevant in Merrett because of the effect it had on the accused, there being evidence of rehabilitation in the intervening period.

24 The courts in Schwabegger and Merrett referred with approval to the decision of the Court of Criminal Appeal in Duncan v The Queen (1983) 47 ALR 746. In that case the appellant was convicted in February 1983 on his plea of guilty of 14 offences against the Bankruptcy Act 1966 (Cth) and sentenced to concurrent terms of 18 months' imprisonment. The court allowed the appeal, set aside the sentences and ordered his conditional release. The offences were committed early in 1979 but the appellant was not charged until February 1983. The delay in bringing the charges was in no way attributable to the appellant. The court said:

[W]here, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation (749).

25 It appears the authorities were aware that the appellant had or may have committed the offences around the time of their commission. After committing the offences, the applicant set about re-establishing himself and incurred financial liabilities which could not be met unless he was released from prison. The court continued:

The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf (749).

26 The delay referred to is that between the commission of the offences and when he was charged, which was unexplained. Thus, in each of Schwabegger, Merrett and Duncan the delay relied on as mitigatory was what the court assessed as an unreasonable period between the commission or detection of the offence and the laying of charges.

27 Anderson J in Bell v The Queen [2001] WASCA 40 re-visited the issue of delay. In that case the offender was convicted of sexually assaulting his young son some 25 years earlier. The delay between the commission of the sentences and conviction was held not to be significantly mitigatory, there being no evidence of rehabilitation. Anderson J said:

Generally speaking, an important objective in custodial sentences is personal deterrence and rehabilitation. Where many years have elapsed since the last offence, there is obviously no need to emphasise in the sentence the element of personal deterrence and, as well, the Court may be able to conclude that rehabilitation has already taken place. This may justify a lesser sentence than would otherwise be appropriate ...

It is not altogether easy to reconcile the cases. However, I think it reasonably clearly appears from the authorities ... that in the general run of cases, delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence.

Where nothing more than mere lapse of time without any conviction is relied on for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just deserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts [5], [7], [8].

28 That approach was followed by Wheeler JA in Scott v The State of Western Australian [2006] WASCA 28 [8]. It is consistent with that in New South Wales: Wright (1989) 45 A Crim R 423 [427]; R v Kearnes [2003] NSWCCA 367; R v Williams [2005] NSWSC 315; (2005) 216 ALR 113.

29 In Kearnes, the appellant was found guilty after trial of nine counts of breaching the Corporations Law. The appellant was given a head sentence of 6 years. An appeal against sentence was unsuccessful. The offences had been committed between 1994 and 1995. The appellant was charged in May 1999. Before being charged the appellant acquired a new legal practice which was said to result in unfairness arising from the delay. The Chief Justice said:

In the present case, I do not see that the delay was of such an order of magnitude as to conclude that any significant unfairness arose of a character that needed to be identified and adverted to by the trial judge in the sentencing task. There was a process of investigation by the Australian Securities Commission that continued for some years prior to the laying of charges. The period of some three and a half years for the process of investigation and determination of which charges could be pursued does not, in the circumstances, appear to me to be so excessive as to constitute a factor that requires to be taken into account in the exercise of the sentencing discretion [68].

30 In Williams, the offender was convicted on his own plea of guilty on three counts under the Corporations Act involving misleading statements and material omissions from a prospectus. The offences took place in October 1998, September 1999 and October 2000. The indictment was dated 15 December 2004. The appellant was sentenced in April 2005. The sentencing judge made no allowance for delay on the ground that delay in the prosecution of cases under the Corporations Act was not unusual because the offences were difficult to discover.

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 (see Shore (1992) 66 A Crim R 37).

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 involvement in the criminal justice system and is not ordinarily mitigatory. An accused is entitled to avail himself or herself of all the rights and protection offered by the criminal law with the inevitable consequence of delay before conviction and sentence, but such delay is not mitigatory (unless it facilitates or results in other positive sentencing considerations). However, undue or unreasonable delay not attributable to the conduct of the accused may itself be mitigatory because it unreasonably extends the period of suspense.

34 I would not draw an inference that the delay between the commission of the offences (or from the time of the ASX referral to ASIC) and the appellant being charged in December 2002 is unreasonable having regard to the nature and extent of the appellant's offending (which involved the use of a number of innocent agents and active concealment of his role), its factual complexity and the need to obtain evidence on each count. The delay between the appellant being charged and sentence is attributable in large measure to Mr Braysich's interlocutory applications. In my view, the proper use of interlocutory applications by a co-offender properly joined does not render the consequential delay unreasonable.

35 There is nothing in the delay itself in this case that justifies a substantial reduction in sentence. Whether the delay facilitated assessments relevant to personal deterrence and rehabilitation can be considered in the context of ground 4. I would dismiss ground 2.

36 The appellant contends the sentencing judge erred in finding that it was open to the appellant to bring the matter to a conclusion at a much earlier stage. It is said in effect that the sentencing judge penalised the appellant for exercising his right to trial. I do not accept that contention.

37 The observation was made by the sentencing judge in the context of considering the mitigatory effect of delay. As previously noted, the relevance of delay is that an accused is left in a state of uncertain suspense as to what is to happen. Where the delay is reasonable in the circumstances (whether as a result of delay in the offence or offender coming to notice or the time taken to properly investigate the alleged offence or the need to prove the elements of the offence at trial), the state of uncertainty is a necessary adjunct of involvement in the criminal justice system and the delay is not mitigatory.

38 Thus, delay resulting from an offender's decision to avail himself of all his rights is not mitigatory. As the sentencing judge correctly observed, an offender has the power to alter the extent of the delay whether by making early factual admissions or admissions of liability. There is no basis for a claim that the sentencing judge regarded the appellant's election to plead not guilty as aggravating the offending. I would dismiss ground 3.

39 This ground relies on a claim that error may be inferred because a sentence is unreasonable or unjust and thus manifestly excessive. To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the person circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

40 It is unclear from the appellant's written submissions whether the challenge is to the individual sentences and the head sentence and whether the complaint relates to the type of sentence imposed or the length thereof. We were informed at the hearing that the appellant challenged the individual sentences and the head sentence and that a non-custodial sentence ought to have been imposed.

41 The sentencing judge concluded that a head sentence of 3 years' imprisonment was appropriate. He then specified the counts on which he imposed a term of imprisonment of 6 months, 12 months and 2 years. Six months' imprisonment was imposed for transactions involving under 50,000 shares. Twelve months' imprisonment was imposed for transactions involving between 50,000 and 100,000 shares and 2 years was imposed for transactions of more than 100,000 shares or multiple transactions. The sentencing judge ordered that the term of 2 years imposed on count 242 be served cumulatively to the term of 12 months on count 1. The remaining sentences were ordered to be served concurrently.

42 In his written submissions, the appellant contended that the offending conduct could and should have been pleaded as one offence under s 998(1) of the Corporations Law. That claim was not pressed at the hearing and need not be decided. Having regard to the totality principle and the respondent's acceptance that the offending was one multifaceted course of criminal conduct for the purposes of the one transaction rule, the pleading would have not affected the result.

43 The maximum penalty for the offences was a fine of $20,000 or 5 years' imprisonment or both on each type of charge.

44 The appellant was aged 41 at the time he committed the offences and 51 at the time of sentencing. He had no prior or subsequent convictions. He ceased share financing and trading in Intrepid in April 1998. References and character evidence spoke of the appellant's honesty, personal integrity, social contribution and charitable contributions and works including in relation to the welfare and advancement of Aboriginals in the Northern Territory. As the sentencing judge suggested, it is difficult to reconcile the evidence demonstrating his good character and reputation with his offending and lack of remorse associated therewith. Ordinarily, rehabilitation requires insight into the wrongful nature of the conduct, remorse for that conduct and action taken to address the cause of the offending. However, based on the character evidence and the sentencing judge's finding that the appellant had conducted himself appropriately over the previous 10 years, it may be accepted there was little if any likelihood of the appellant re-offending which in turn reflects progress in rehabilitation. The delay facilitated these assessments. Further, the appellant's extensive admissions on factual matters, albeit made at a late stage, facilitated the efficient administration of justice. It is also relevant that as a result of his convictions, the appellant was automatically disqualified from managing a corporation for five years from the date of his release from prison.

45 I turn now to the issue of sentences customarily imposed for offences of this type. The appellant relied on R v Austin (2001) 38 ACSR 27 and Brown v The Queen [2006] WASCA 145; (2006) 202 FLR 98.

46 In Austin the offenders, Austin and Manasseh, were convicted of creating a false or misleading appearance of active trading in shares in a company listed on the ASX contrary to s 998(1) of the Corporations Law. The sentencing judge released each of the offenders on recognisance conditional on good behaviour for 3 years without passing sentence. Each offender was charged with one count in relation to conduct occurring between 1 May 1997 and 6 June 1997. In relation to Austin, the Crown relied on eight transactions. The volume of shares traded the subject of those transactions was approximately 466,500. In relation to Manasseh, the Crown relied on 10 transactions. The volume of shares traded the subject of those transactions was approximately 437,000. The sentencing judge found that the transactions had little, if any, discernible effect on the market. The Crown characterised the offence committed by each offender as 'relatively serious'. The offenders were persons of otherwise good character. There was no finding that either offender had engaged in a deliberate course of deception. The appellant's offending in this case is at a significantly higher level of seriousness.

47 In Brown, the appellant appealed his sentence of fines totalling $30,000 for four convictions for breaching s 998(1) of the Corporations Act 2001 (Cth). The appellant engaged in conduct which included sometimes appearing on both sides of the market, having more than one bid on the market simultaneously through different brokers, giving instructions to the different brokers so that his own bids would leapfrog over each other (giving an appearance of active competition in a thinly-traded stock), giving instructions to different brokers often only a matter of minutes apart, and not informing the brokers that he was placing bids through other brokers. During the period of the offending, the price in the relevant shares rose from 35 cents to $1.00. The appeal was dismissed. Wheeler JA (with whom Martin CJ & Buss JA agreed) said:

[I]t seems to me that [the sentence] was lenient. A person who, as the appellant did, deliberately and dishonestly engages in behaviour which he expects will mislead the market, is behaving in a manner which has the potential adversely to affect many members of the community and has the potential to undermine confidence in the share market, which is an important institution in the function of the economy. Further, it is ... behaviour which is difficult to detect. There are some similarities with fraud upon the revenue in those respects. In my view, it would have been open to her Honour to have imposed a term of imprisonment, although the term would be of relatively short duration having regard to the mitigating factors to which I have already referred [28].

48 Of course, a court is required to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act. A sentence of imprisonment cannot be imposed unless it is the only appropriate sentence in the circumstances. On my reading of the reasons in Brown, the court flagged that a sentence of imprisonment was the only appropriate disposition.

49 The approach taken by the sentencing judge in Brown is consistent with that in R v Lloyd (1996) 19 ACSR 528. The prosecution arose out of a scheme to maintain the share price of shares in Paragon Resources NL. A fall in the share price below 70 cents would trigger default provisions in loan and security agreements between a company associated with Rothwells Ltd and a bank. Lloyd was the managing director of Rothwells Ltd and default under the loan agreements was likely to lead to its collapse. Over the course of nine months, Rothwells arranged and funded substantial trading in the shares of Paragon through a number of companies. Lloyd was convicted following trial of three offences under s 124 of the Securities Industry (Western Australia) Code of creating a false appearance with respect to the price of shares. He was fined $22,500. The Crown appealed against the inadequacy of the sentence. The Full Court by a majority (Malcolm CJ & Ipp J) substituted fines totalling $50,000.

50 It may fairly be said that a sentence of immediate imprisonment is not consistent with the type of sentences previously imposed for this type of offence. However, that does not prevent this court from re-assessing and re-evaluating what is an appropriate sentence reflecting current values and circumstances.

51 Mason J in North v Marra Developments Ltd [1981] HCA 68; (1981) 148 CLR 42 identified the purpose of the predecessor of s 998(1). He said:

It seems to me that the object of the section is to protect the market for securities against activities which will result in artificial or managed manipulation. The section seeks to ensure that the market reflects the forces of genuine supply and demand ... It is in the interests of the community that the market for securities should be real and genuine, free from manipulation (59).

52 The offence has the capacity to seriously undermine the integrity of the market in listed securities. That directly affects a very significant proportion of the Australian community who now invest in such securities. It is of no consequence that the corporations legislation was subsequently amended to make the equivalent provision both an offence and a civil penalty provision (s 1041B and s 1317S of the Act). The seriousness of the offending can vary significantly (see, for example, Fame Decorator Agencies Pty Ltd v Jeffries Industries Ltd [1998] NSWSC 157; (1998) 28 ACSR 58).

53 The appellant's offending is at a high level of seriousness of offences of this type. As the sentencing judge found, it involved considerable effort and guile on the appellant's part for its implementation, was done with the intention of increasing the share price and thus the appellant's profit and with the intention of misleading the investing community.

54 The nature and seriousness of the offending in this case requires that significant weight be given to the sentencing objective of general deterrence. There must be a strong incentive to deter others from committing white collar offences of this type. In such circumstances, reduced weight is given to matters personal to the offender. Notwithstanding the mitigatory factors to which I have referred, the sentencing judge was correct to impose a term of immediate imprisonment. The individual sentences, the head sentence and the time to be served in custody are not manifestly excessive. I would dismiss ground 4.

55 I would grant leave in relation to grounds 1, 2, 3 and 4 of the appeal against sentence but dismiss that appeal.

56 BUSS JA: I agree with McLure JA that leave to appeal against sentence should be granted on grounds 1, 2, 3 and 4, but that the appeal should be dismissed, generally for the reasons she gives. I propose to make some additional observations on the issue of delay.

57 The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending

prosecution against an offender, will depend on all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA. Like her Honour, I put to one side those authorities in which issues of delay and totality intersect.

58 First, delay is not, of itself, a mitigating factor.

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 the 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 co-operation 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 co-operation 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 have emerged.

63 Sixthly, delay (not being delay of the kind described in the second, third and 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 the sentence that would otherwise be imposed on the offender,

if the court thinks it an appropriate means of marking its disapproval of the conduct in question.

65 The guiding principles I have stated are not intended to be exhaustive or inflexible.

66 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of McLure JA. I agree with those reasons. I have also read the observations of Buss JA on the issue of delay and I agree with the conclusions reached by his Honour.