New South Wales Supreme Court CITATION : Commonwealth Director of Public Prosecutions v Robert Bart Doff [2005] NSWSC 51 HEARING DATE(S) : 17 December 2004, 11 February 2005 JUDGMENT DATE : 11 February 2005 JUDGMENT OF : Barr J at 1 DECISION : Defendant ordered to pay to the Commonwealth of Australia a pecuniary penalty of $37,255.75. PARTIES : Commonwealth Director of Public Prosecutions, Robert Bart Doff FILE NUMBER(S) : SC 14163/2004 P Byrne SC COUNSEL : M Buscombe and P R McGuire John De Mestre & Co SOLICITORS : Commonwealth Director of Public Prosecutions LOWER COURT JURISDICTION : - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J 11 FEBRUARY 2005 14163/2004 COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v ROBERT BART DOFF JUDGMENT 1 HIS HONOUR: This is an application by the Director of Public Prosecutions for an order under s116 Proceeds of Crime Act 2002 that the defendant, Robert Bart Doff, pay to the Commonwealth an amount determined by the Court. On 19 November 2004 the defendant was found guilty by a jury of the offence of insider trading. I have today imposed sentence on Mr Doff, ordering him to serve a number of hours of community service work and fining him. 2 Section 116 requires the Court to make an order of the kind sought here if the Director of Public Prosecutions applies for it and the Court is satisfied that the defendant has been convicted of an indictable offence and has derived benefits therefrom and that the offence is a serious offence. A serious offence includes one punishable by imprisonment for three years or more. The maximum period of imprisonment that may be imposed for the offence of which the defendant has been convicted is five years, so his offence is a serious one. The Director of Public Prosecutions has made out his case for an order. 3 The manner of determining the amount of any pecuniary penalty order is prescribed by Chapter 2, Part 2 – 4 Division 2 of the Act. As that Division applies to the present case the amount of the order is the total amount of benefits received by the defendant, without deduction of outgoings. It is agreed that the total proceeds derived by the defendant's company Jetoten Pty Limited upon the sale of the shares was $67,255.75. Since Jetoten Pty Limited was under the control of the defendant, the proceeds came under the control of the defendant. He therefore received a benefit equivalent to that sum. 4 The only deduction the Court may make as the Act applies to this case is that provided by s132, by which the Court may if it considers it appropriate reduce the pecuniary penalty amount by an amount equal to that of any fine payable by the defendant for the same offence. 5 I have today imposed a fine of $30,000.00 on the defendant and I consider it appropriate to reduce the amount of the pecuniary penalty order that I shall make by an amount equal to that amount. The order that I make, therefore, is as follows - 1. Order that the defendant pay to the Commonwealth of Australia a pecuniary penalty of $37,255.75. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.