R v Howard [2003] NSWSC 1248

Reported Decision : 48 ACSR 438

New South Wales Supreme Court

CITATION : R v Howard [2003] NSWSC 1248 HEARING DATE(S) : 16/12/03 JUDGMENT DATE : 23 December 2003

JURISDICTION: Common Law Division Criminal List JUDGMENT OF : Kirby J DECISION : Count 1: Imprisonment for 1 year 9 months commencing 23/12/03 and expiring 22/09/05; Count 2: Imprisonment for 2 years commencing 23/12/04 and expiring 22/12/06; Recognizance release date 22 December 2005; Sentence suspended under s20(1)(b) of the Crimes Act 1914

CATCHWORDS : Criminal Law - crimes of dishonesty and breach of trust by senior manager - white collar crime - offer of assistance - suspended sentence provided fulfills undertaking to give assistance Corporations Act 2001 LEGISLATION CITED : Crimes Act 1900 (NSW) Crimes Act 1914 R v Ellis (1986) 6 NSWLR 603 CASES CITED : R v Cartwright (1989) 17 NSWLR 243 R v Gallagher (1991) 23 NSWLR 220 PARTIES : Regina William Herbert Howard FILE NUMBER(S) : SC 70106/03 COUNSEL : T A Game SC (Crown) I McClintock SC/H Dhanji (Acc) Ms J Phillips/B Hatfield, (Cth DPP) SOLICITORS : Watson Mangioni (Acc)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

DAVID KIRBY J

Tuesday 23 December 2003

70106/03 REGINA v William Herbert HOWARD

JUDGMENT ON SENTENCE 1 KIRBY J: On 16 December 2003 the Commonwealth Director of Public Prosecutions presented an ex officio indictment against William Herbert Howard. The indictment was in these terms: Count 1 : Between 2 December 2000 and 15 March 2001, William Herbert Howard did, contrary to section 184(2)(b) of the Corporations Act 2001, as an employee of HIH Casualty and General Insurance Ltd (HIH), use his position dishonestly, recklessly as to whether such use resulted in Bradley David Cooper directly or indirectly gaining an advantage, in that he dishonestly received from Cooper cash sums totalling approximately $124,000 in return for his facilitating payments by HIH, or its subsidiaries, to or in favour of Cooper, or companies associated with him. Count 2 : Between 2 January 2001 and 16 January 2001 William Herbert Howard did, contrary to section 184(2)(a) of the Corporations Act 2001, as an employee of HIH Casualty and General Insurance Ltd (HIH), use his position dishonestly, with the intention of directly or indirectly gaining an advantage for Bradley David Cooper, by facilitating the payment of $737,500 by HIH to The Goodwill Group Pty Ltd, a company associated with Cooper, knowing that the payment obligation had already been discharged. 2 Mr Howard pleaded guilty to both counts. It remains for me to pass sentence. Before I do so, I must determine the facts relevant to the sentencing discretion. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Howard, it is enough that they should be proved on the balance of probabilities.