Supreme Court New South Wales Medium Neutral Citation: R v ZHU, Bo Shi [2013] NSWSC 127 Hearing dates: 23 November 2012 Decision date: 15 February 2013 Jurisdiction: Common Law - Criminal Before: Hall J Decision: Convicted of the offence of insider trading. (1) In respect of the offences committed between 6 November 2006 and 23 November 2007, whilst employed by Caliburn Partnership Pty Ltd contrary to s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), sentenced to a term of imprisonment of 6 months to commence on 15 February 2013 and to expire on 14 August 2013. (2) In respect of the offences committed between 21 January 2008 and 9 July 2010, whilst employed by Credit Suisse Management (Australia) Pty Ltd, contrary to s 1043(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), sentenced to a fixed term of imprisonment of 3 months to commence on 15 February 2013 and to expire on 14 May 2013. (3) In respect of the offences committed between 17 July 2010 and 29 September 2011, whilst employed by Hanlong Mining Investments Pty Ltd contrary to the provisions of s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), sentenced to a term of imprisonment of 2 years to commence on 15 May 2013 and to expire on 14 May 2015. Direct that the Offender be released on 14 May 2014 at the expiration of 12 months of that sentence on a recognisance that he be of good behaviour during the balance of the term upon him giving security in the sum of $1,000 without surety. Catchwords: CRIMINAL LAW - section 1043A(1)(d) Corporations Act 2001 (Cth) - insider trading - sentencing principles for such offences - mitigating factors - unethical work environment - factors relevant to imposition of a custodial sentence Legislation Cited: Corporations Act 2001 (Cth) Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (Cth) Proceeds of Crime Act Cases Cited: Braun v R (2008) 190 A Crim R 497; [2008] NSWCCA 269 DPP v O'Riley [2010] VSC 138 Hartman v R (2011) 87 ACSR 52; [2011] NSWCCA 261 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 85 ALJR 195 Pearce v The Queen (1998) 194 CLR 610 R v DeSilva [2011] NSWSC 243 R v DeSilva [2011] NSWSC 243 R v Doff (2005) 55 ACSR 200; [2005] NSWCCA 119 R v Doff (2005) ACLR 317; [2005] NSWSC 50 R v Firns [2001] 51 NSWLR 548 R v Hartman [2010] NSWSC 1422 R v Hartman [2011] NSWCCA 261 R v McKay (2007) ACSR 470 R v McQuoid [2009] EWCA Crim 131; [2009] 4 All Eng 388 R v Pantano (1990) 48 A Crim R 328 R v Rivkin (2003) 198 ALR 400; 45 ACSR 366; [2003] NSWSC 447 R v Rivkin [2003] NSWCCA 307 R v Agius; R v Zerafa [2012] NSWSC 978 R v Bateson [2011] NSWSC 643 R v de Silva [2011] NSWSC 243 Texts Cited: Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Fair Shares For All, Insider Trading in Australia, AGPS, Canberra, 1989, (the Griffiths Report) Category: Sentence Parties: Regina (Crown) Bo Shi Zhu (Offender) Representation: Counsel: D Staehli SC (Crown) M Thangaraj (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Watson Mangioni Lawyers Pty Ltd (Offender) File Number(s): 2012/222808 REMARKS ON SENTENCE 1HIS HONOUR: The Offender, Bo Shi Zhu, pleaded guilty to three counts of insider trading contrary to the provisions of s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth) to which I will refer to in these remarks as ("the Act"). 2The three offences in the indictment have been referred to in submissions as three "rolled up" counts in the sense that each involves more than one incident of procuring contrary to s 1043(A)(1)(d) of the Act. As the Crown observed, "rolling up" does not prevent assessment of the criminality of the Offender's conduct within each count. It is a question of the criminality disclosed and not the number of counts. The fact that the charges are rolled up is relevant to the issues of totality, and in particular concurrency and accumulation of sentences to which I shall later refer. 3The Offender now stands for sentence in respect of the charges to which he has entered guilty pleas. 4As to the offences, the counts on the indictment related to offences committed by the Offender during three separate periods of employment with three different employers. The offending occurred over a period of four and a half years. 5The particulars of the counts are as follows: (a) Between 6 November 2006 and 23 November 2007, the Offender was employed as an Executive in the Corporate Finance Advisory Division of Caliburn Partnership Pty Ltd, which will be now be referred to as "Caliburn", a leading independent corporate advisory firm. The Caliburn count consists of three separate sets of transactions between the period 8 December 2006 and 30 March 2007. (b) Between 21 January 2008 and 9 July 2010, the Offender was employed as an Associate in the Investment Banking Division of Credit Suisse Management (Australia) Pty Ltd which I will refer to as "Credit Suisse" in these remarks, a multinational financial services company. The Credit Suisse count consists of two separate transactions carried out on 14 August 2008 and on 13 February 2009. (c) In the period between 17 July 2010 and 29 September 2011, the Offender was employed as the Vice President, Investments of Hanlong Mining Investments Pty Ltd which will be referred to in these remarks as "Hanlong Mining", the Australian subsidiary of a Chinese conglomerate. The Hanlong Mining count consists of five separate sets of transactions in the period 6 and 15 July 2011. 6The Caliburn and the Credit Suisse counts each carry a maximum penalty of imprisonment of 5 years and/or a fine of $220,000. 7The Hanlong Mining count is subject to an increased maximum penalty of imprisonment of 10 years and/or a fine of $495,000 or three times the value of the benefits attributable to the commission of the offence (whichever is the greater). The increased maximum penalty was effective from 13 December 2010. 8The offence of insider trade is a Commonwealth offence. Accordingly, the Offender must be sentenced in accordance with the provisions of Part 1B of the Crimes Act 1914 (Cth). It is a requirement of that Part that the Court must impose a sentence of a severity that is appropriate in all the circumstances of the case: s 16A(1) of the Act. 9Section 16A(2) of the Act provides a non-exhaustive list of mandatory considerations to be taken into account (where known and relevant) in determining the appropriate sentence. 10Section 17A of the Act provides that a Court should not pass a sentence of imprisonment in respect of a federal offender unless, having considered all other available sentences, the Court is satisfied that no other sentence is appropriate in all the circumstances of the case. 11In sentencing an offender in respect of an insider trading offence under the Act, it is clear that general deterrence must be taken into account in determining the appropriate sentence even though there is no explicit reference to it in s 16A(2). 12General deterrence is a particularly important consideration in relation to "white collar" offences which are difficult to detect, investigate and prosecute successfully. I refer to the decision in R v Pantano (1990) 49 A Crim R 328 at 330. 13In the determination of the appropriate sentence, the Court must have regard to the nature and the severity of the conditions that may be imposed on, or may apply to, the offender under that sentence: s 16A(3) of the Crimes Act 1914 (Cth). 14In the circumstances of the present case, additional custody sentencing alternatives are those set out in Part 2 Division 2 of the Crimes (Sentencing Procedure) Act 1999. In general terms they include home detention where the offender is sentenced to imprisonment for not more than 18 months or an intensive correction order where the offender is sentenced to imprisonment for not more than 2 years. 15It has been submitted on behalf of the Crown in the present case, that neither of these alternatives would represent an appropriate sentence to reflect the seriousness of the offending conduct and the need for general deterrence. 16The Court is also empowered as earlier indicated, where it passes a sentence or makes an order under s 20AB(1) in respect of a person convicted of an offence against the law of the Commonwealth for the imposition of a fine or other pecuniary penalty amongst other orders. 17Detailed submissions were provided by Mr Stoke, Senior Counsel on behalf of the Crown, and Mr Thangaraj, Senior Counsel on behalf of the Offender. I record my appreciation to the detailed and valuable nature of those submissions. 18As to the relevant principles, insider trading is a serious offence. I refer to R v McKay (2007) 61 ACSR 470 and the observations of Whealy J at [60]. It has been noted that it is a serious offence because it can undermine the integrity of the stock market. I refer to the decision of R v Doff (2005) 23 ACLR 317; [2005] NSWSC 50 at [40]. In addition, it has been observed that such an offence undermines confidence in the commercial world generally. The principles of confidentiality and trust are fundamental to the operation of many commercial transactions. I refer to the decision in Hartman v R (2011) 87 ACSR 52; [2011] NSWCCA 261 at [25]. 19An insider trading offender uses information to gain an unfair advantage over other traders in the market. As to the "victims" of insider trading see DPP v O'Reilly [2010] VSC 138 at [19] and R v Hartman [2010] NSWSC 1422 at [45]. 20The New South Wales Court of Criminal Appeal has characterised insider trading as a form of cheating or fraud even though its consequences may be more opaque than general fraud. I refer to Hartman v R (2011) 87 ACSR 52; [2011] NSWCCA 261 at [94]. 21It has been observed that the "real bite" of general deterrence only takes hold when an actual custodial sentence is imposed. I refer to the decision of Braun v R (2008) 190 A Crim R 497; [2008] NSWCCA 269 at [85]. 22Finally, it is to be noted that while the amount of profit derived from an insider trading offence may be relevant, the amount invested is a more important indicator of criminality. I refer to the decision in R v Doff, supra, at [31]. 23Decisions and sentencing remarks in a number of well-known cases have heightened recognition that insider trading in breach of the relevant provisions of the Act does involve a serious criminal offence. 24The theory offered as a basis for prohibiting insider trading has been suggested as involving the concepts of: Fairness, that is, market participants should have equal access to the relevant information from the company which issues the securities. Fiduciary duty, that is, a person who holds a position of trust should not make a personal profit from that position without the informed consent of beneficiaries. Economic efficiency, that is, insider trading is damaging to the integrity of the financial market; and Corporate injury, that is, insider trading injures the company which issues the securities, the shareholders in the company and the investors who deal with insiders: The Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Fair Shares For All: Insider Trading in Australia, AGPS, Canberra, 1989, (the Griffiths Report) quoted in R v Firns [2001] 51 NSWLR 548 by Mason P at [43]. 25It has been observed that insider trading offences are not victimless and each illegal transaction may be likely to have a cost to someone who either traded or held their position without the benefit of the knowledge available to the offence; R v Hartman [2010] NSWSC 1422 per McClellan CJ at CL at [45]. I will return to that aspect. 26As I have already said above, with such offences there is a need for general deterrence given that such conduct undermines both the efficacy and integrity of the public securities market: R v Rivkin (2003) 198 ALR 400; 45 ACSR 366; [2003] NSWSC 447 at [44]; R v Rivkin [2004] NSWCCA 7 at [423]; and R v Pantano at [330]. 27Further, it has also been accepted that a stern approach should be taken to offences of insider trading: R v Doff (2005) 54 ACSR 200; [2005] NSWCCA 119 at [56]. The need for appropriate sentencing in cases involving white collar crime arises by reason of the exacting standards of honesty that is expected and the difficulty in the detection of such offences: R v Doff, supra, at [56]. In R v Doff the Court of Criminal appeal observed that an insider trading offence: "... remains a serious offence, and there needs to be a considerable deterrent aspect reflected in order to protect the integrity and the efficacy of the market. Those in a position of trust who receive prior sensitive information in relation to securities are expected to conform to exacting standards of honesty, and transgression can normally be expected to lead to custodial sentences as well as to pecuniary penalties" at [56]. 28The fact that the legislature has, in comparatively recent times, seen fit to substantially increase the maximum penalty available to be imposed upon such offenders, is likely to produce more severe penalties, everything else being equal than those hitherto imposed. 29In R v De Silva [2011] NSWSC 243, Buddin J referred to the remarks of Lord Chief Justice of England and Wales in R v McQuoid [2009] EWCA Crim 1301; [2009] 4 All Eng 388 in which His Lordship observed that: "[t]hose who involve themselves in insider dealing are criminals, no more and no less. The principles of confidentiality and trust, which are essential to the operations of the commercial world, are betrayed by insider dealing and public confidence in the integrity of the system which is essential to its proper function is undermined by market abuse ... The message must be clear: When it is done deliberately, insider dealing is a species of fraud; it is cheating" [at [8]-[9].] 30In these proceedings a Statement of Facts was admitted into evidence as part of the Crown material on sentence. I have relied upon it in describing and recounting the factual background and details concerning the offences. The Offender has, in an adopting statement, stated that the facts set out in that statement are true and correct. FACTS The Offender's Trading History 31The Offender first started trading in leveraged products in 2004. From about 2006, when trading CFDs for shares became popular, he used CFDs for virtually all of his securities trading. (1) The Caliburn Offending 32As to the facts concerning the particular offences, firstly the Caliburn offending, the offending arises from insider information that came into the possession of the Offender during his employment by Caliburn. The offences concern his acquisition of financial products, being CFDs, relating to an entity, Veda Advantage Ltd ("Veda"), an Australian credit reference company and a client of Caliburn. 33Whilst in possession of the inside information, through his employment: (1) Between 27 December 2006 and 25 January 2007 the Offender procured a Ms Chen to acquire 47,945 Veda CFDs for a total of investment of $8,601.85. The trading activities in this respect involved ten separate acquisitions contrary to s 1043A(1)(d) of the Act. (2) On 3 January 2007 the Offender caused the acquisition by a Mr Yu of 3,700 Veda shares for a total investment outlay of $9,923.40. (3) On 16 January 2007 the Offender caused the acquisition by Mr Yu of 7,200 Veda shares for a total investment outlay of $19,872.00. (4) Between 19 and 25 January 2007 the Offender caused the acquisition of 28,150 Veda CFDs through Chen's First IG Markets Account, being part of the Veda CFDs to which I have referred in the first transaction. That acquisition was primarily funded with $5,000 provided by Mr Yu on 16 January 2007, which represented half of the overall investments in Veda CFDs acquired through Chen's First IG Markets Account in the period 27 December 2006 and 25 January 2007. (5) On 29 and 30 March 2007, the Offender caused the acquisition of 190,000 Veda CFDs through Chen's First IG Markets Account for a total investment of $51,120.56. 34Mr Zhu signed his contract of employment with Caliburn on 9 October 2006. It contained a confidentiality provision. The contract, amongst other things, stated that he was under an obligation to keep all "Confidential Information" secret and confidential. 35On 16 November 2006 the Offender acknowledged in writing that he was aware of, accepted and agreed, to comply with what were termed "Employee Trading Rules". These rules were specifically directed to preventing insider trading by staff by requiring them to register and obtain approval before completing any trades in financial products. 36On 16 November 2006 he acknowledged in writing that he had received, read and agreed with Caliburn's Compliance Manual which explained, in summary form, what insider trading offences were. 37In his affidavit sworn 20 November 2010, the Offender stated, however, that when offered the job at Caliburn, he was desperate to sign the employment contract and did not read anything other than the clauses relating to probation and salary. He said he did not read the confidential information clause. In particular, he also said that he did not recall reading any documents about insider trading. 38He was assigned shortly after joining Caliburn's 'Deal Team' for the proposed Veda takeover which had been codenamed to maintain confidentiality. He worked on that project until it was announced to the public on 30 January 2007, after which the price of Veda shares on the ASX increased by 20 per cent. Throughout the period from 7 December 2006 to 29 January 2007, the Offender possessed inside information about financial products relating to Veda as specified in the Statement of Facts. 39On 16 December 2006 he instructed Ms Chen to open Chen's First IG Markets Account for him to operate on his own behalf. Ms Chen did so on 20 December 2006 following which she provided the Offender with the user name and password so that he could operate the account online. 40An affidavit sworn by him 20 November 2012 and relied on at the sentencing hearing, his evidence was that in October 2006 he had spoken to Ms Chen, who is described by him as a close family friend, on the subject of opening a trading account and that they agreed to create a joint investment account under her name and they would purchase CFDs and split any profits. The Offender relied on this evidence on the question as to whether the acquisitions made in and after December 2006 were premeditated activities carried out with a deliberate strategy involving concealment by using Chen's First IG Markets Account. 41The Offender's acquisition of financial products, including derivatives such as CFDs, in the period before he joined Caliburn, were transacted in his personal capacity. Four trading accounts were held by him in his own name with Commonwealth Securities Limited ("CommSec") and IG Markets Limited. There were two trading accounts held jointly in the names of the Offender and his wife, Ms Wang. Two trading accounts were also held in the name of Ms Wang. 42It is impossible to accept, on the evidence, that the Offender, as at December 2006, was unaware of the risk of exposure if he proceeded to acquire the Veda CFDs in his own name. The fact that in and after December 2006 he traded whilst at Caliburn through Chen's First IG Markets Account and not in his own name, is cogent evidence of his desire to trade without the risk of detection. 43The first illegal trades through Ms Chen's account occurred approximately 11 days after the account was opened. 44In addition to knowing he was breaching company policy, the Offender failed to disclose the Veda trades to Caliburn so as to avoid alerting his employer to his acquisitions. It is to be noted, however, that he sought approval from Caliburn on occasions for other trades during his employment, thereby demonstrating an awareness of Caliburn's policy of the need for disclosure by staff in relation to proposed trading activities. 45In addition to the facts stated in paragraph 8, the Statement of Facts are significant. There the Offender accepted that he procured Ms Chen to open the four accounts referred to in the statement "... and enable him to operate them for the purpose of concealing his trading activities ..."; at [8]. 46On 21 December 2006 the Offender provided a cash payment of $5,000 to Ms Chen, and on 16 January 2007 he invited Mr Yu to also provide $5,000 to Ms Chen. The $10,000 was used to fund the acquisition of the 47,945 Veda CFDs through Ms Chen's First IG Markets Account. 47The acquisition of the CFD's occurred in the period 27 December 2006 and 25 January 2007 for a total investment outlay of $8,601.85. In engaging in that conduct, involving ten separate acquisitions, the Offender procured Ms Chen to acquire the 47,945 Veda CFDs contrary to the relevant insider trading provisions. 48Mr Yu, who was the same age as the Offender and had been close friends with him, entered into discussions in December 2006 with Mr Zhu on the question of acquiring financial products relating to Veda. 49Between 8 December 2006 and 25 January 2007, whilst he was in possession of inside information relating to Veda, the Offender encouraged Mr Yu to acquire financial products. 50On 22 December 2006, Mr Yu opened a trading account with CommSec in the name of his mother, Ming Fei ("the Ming Fei CommSec Account") for him to operate on his own behalf. 51On 3 and 16 January 2007 Mr Yu acquired respectively 3,700 and 7,200 Veda shares through the Ming Fei CommSec Account for an outlay of $9,923.40 for the first acquisition and $19,872 for the second. 52On 16 January 2007 Mr Yu deposited $5,000 into the bank account of Ms Chen for financing the purchase of $5,000 worth of Veda CFDs on his behalf. 53On 30 January 2007 the Offender caused the disposal of 47,945 Veda CFDs in Chen's First IG Markets Account. The underlying share investment value of the 47,945 Veda CFDs had increased from $135,353.40 to $168,716.40. A profit of $33,363 (less costs) was realised. 54On 30 January 2007 Mr Yu disposed of the 10,900 Veda shares purchased on 3 and 16 January 2007. At the time of disposal the value of the 10,900 Veda shares had increased from $29,795.40 to $38,368. A profit of $8,572.60 (less costs) was realised. 55In relation to the third set of transactions involving the acquisition of Veda CFDs, the Offender became aware that there was to be a definitive offer made in relation to the proposed Veda takeover. On 29 and 30 March 2007 he possessed inside information in relation to the imminent definitive offer to be made. On 29 and 30 March 2007, whilst in possession of the inside information, he caused the acquisition, through Chen's First IG Markets Account of 190,000 Veda CFDs for a total investment outlay of $51,120.56. 56On 2 April 2007, prior to the opening of the share market, Veda issued an ASX announcement in relation to the takeover offer for the acquisition of all of Veda's shares. When trading resumed, the share price of Veda shares rose 7.6 per cent on the last trading. 57On 2 April 2007 the Offender caused the disposal of 190,000 Veda CFDs. The underlying share value of the CFDs increased, and a profit of $39,548 (less costs) was realised. 58The total profit derived from the Caliburn offending was $81,483.60 (less costs) of which the Offender's share was $55,814.50. 59Mr Zhu's evidence was that before joining Caliburn he had held the belief that trading in securities with the advantage of inside information "was acceptable. I definitely did not appreciate that insider trading was essentially stealing". He said that when offered the job at Caliburn, he did not know or understand anything about the laws in relation to insider trading: I refer to his affidavit at [30]. 60In his affidavit sworn on 20 November 2012, the Offender said he became more familiar with the Australian culture in relation to insider trading. He stated: "I knew that I could not disclose confidential information to third parties and I knew that I could not buy securities in companies that I was working on. I knew that purchasing the second batch of Veda securities was against company policy but I didn't think that it was insider trading. During my employment at Caliburn, I was never requested to attend, and therefore never attended, any training sessions in relation to securities market regulation. Accordingly, I did not know that insider trading was a crime for which you could go to prison. I certainly didn't think that I had become a criminal as a result of my actions at that time." (at [58]). Submissions 61I turn to the submissions in relation to the Caliburn offences. The Crown submitted that the Offender acted with premeditation and planning. This was said to be evidence by his instruction to Ms Chen on 16 December 2006 to open a CFD trading account for him to operate on his own behalf. The first illegal trades through the account it was noted occurred about 11 days after the account was opened. 62The Crown further submitted that by providing further information to Mr Yu relating to the Veda takeover, the Offender lost control of the information and risked its further dissemination. 63The Crown observed that the Offender caused the third set of transactions after he gained possession of higher quality inside information relating to an imminent, definitive takeover offer for Veda at a price above the indicative price previously announced. 64A total profit, the Crown noted, was a figure I previously mentioned of $81,483.60 (less transaction costs) of which the Offender's share was $55,814.50 (less costs). 65The Crown submitted that the Caliburn offending was more serious than the Credit Suisse offending, but less serious than the Hanlong Mining offending. 66In the submissions on behalf of the Offender, reference was firstly made to what was termed "Chinese culture" by which it was stated in evidence meant that, generally speaking, in Chinese circles one was considered foolish if you did not take advantage of an opportunity that presented itself to you, especially if the advantage was to make money. Further, it was contended, based on the evidence presented for the Offender, that Chinese people traded in securities with inside information as being one such opportunity and it was not considered to be serious criminal conduct. 67This claimed culture is said to be a relevant matter to be taken into account in understanding the Offender's actions. 68As to the opening of the CFD trading account by Ms Chen, it was submitted on behalf of the Offender that it was not evidence of "premeditation and planning" on the basis that he and Ms Chen had agreed to open a CFD trading account in October 2006, before the Offender commenced employment with Caliburn, even though the account was in fact opened in December 2006. 69It is also submitted for the Offender that the Caliburn offences must be considered in light of his junior status and role at Caliburn. Additionally, it was said on his behalf that he was young (35 years of age) and was "naive and inexperienced". 70In the Crown's submissions in reply, it was submitted that, regardless of the original intention in setting up the trading account, the fact is that the account was only operated after the Offender had started work on Veda. The effect of the use of the account by the Offender, the Crown submitted, was to conceal the Offender's conduct in circumstances in which he was breaching company policy and that he deliberately failed to disclose Veda trades to Caliburn. He had admitted to obtaining a thrill from getting away with it. The Crown noted that in contrast to his insider trading, the Offender had sought approval from Caliburn for other trades in the same period as the Veda trades. 71The Crown further observed that whilst the first round of Veda trades were effected from a computer in Caliburn's office, the remaining seven transactions were conducted from a nearby internet cafe. 72There was a further issue between the parties arising from the Crown's submission as to the claimed high quality nature of the inside information. 73On behalf of the Offender, it was submitted that he had been told "very little information" regarding "the Veda deal". 74The Crown observed that the relevant issue is the significance of the information and not the amount of it. The information it contended was significant. 75In particular, in relation to the second set of trades, the Crown relied upon his evidence that he was aware that there would be an imminent, definitive offer which the board of Veda intended to endorse at a price above the indicative offer price previously announced. 76On behalf of the Offender in further written submissions, it was emphasised that although he had admitted having access to material confidential information, and misusing it, nonetheless because of his "very junior role" at Caliburn, he must be distinguished from other offenders in other cases by reason of their seniority; seniority brings with it greater access to high (and potentially higher) confidential information. Consideration 77The seriousness of the Caliburn trading arises from the fact that the offences were plainly committed with premeditation and planning and with full knowledge that the trading was undertaken in breach of his employment obligations. The Offender accepted in evidence that he derived a thrill from getting away with the trading undetected and, in effect, thumbing his nose at company policy: Transcript 19.50 to 20.6. 78He stated in his affidavit that he knew that his acquisitions constituted a breach of company policy. However, his evidence was that he did not ask Ms Chen to set up the First IG Markets Account so that he could conceal his insider trading. 79In relation to the second round of Veda trades in March and April 2007, the Offender accepted that at the time of the trades he knew that what he was doing was wrong: Transcript 21.8-12. 80It is correct to say that some account is to be taken of the Offender's relative inexperience in the finance industry at the time that he joined Caliburn, and that it is possible that there may have been some influence on him by virtue of what he described as the "Chinese culture". As against that, he is clearly an intelligent young man who was educated in Australia and had attained a level of maturity. 81However, accepting that the Offender did not appreciate the criminality of his trading, there is no doubt that he was fully aware of the fact that he was breaching company policy and was acting dishonestly. In utilising Ms Chen's First IG Markets Account, he consistently took steps to disguise or conceal his trading. In this respect, I rely upon the Statement of Facts and the candid admissions made by the Offender both in his affidavit and in the course of his oral evidence. 82The nature of the offending was serious. It involved a fundamental breach of his confidentiality obligations that bound him, and of which he was aware. The inside information possessed by him was of a high quality, particularly in relation to the acquisition of the 190,000 CFDs made on 29 and 30 March 2007. Further, the Offender's primary motive in trading with inside information was to obtain personal financial benefit. The seriousness of his activities was increased by his procuring others to trade for their own profit. 83Finally, the amount of the Caliburn offending is a relevant matter in assessing the seriousness of the offence involving the outlays I have previously referred to. 84I consider that the objective gravity of the offending conduct in relation to the Caliburn matters to be significant, although, not at the high end of the range for offences of this kind. Whilst the Offender was a true insider, his involvement was less than, for example, that of a senior executive or manager. I make that assessment based also on the amounts invested and the extent of his knowledge, that is though his conduct was "wrong" in the sense I earlier discussed, he at a relatively early period in his career did not possess sufficient appreciation of the criminality involved in the offending behaviour. 85In determining sentence, it is necessary to bring into account the relevant mitigating factors which I will address later in these remarks. (2) Credit Suisse Offending 86I turn to the Credit Suisse offending. This offending arises out of two separate transactions. The first was procuring Ms Chen to dispose of 60,000 CFDs relating to Funtastic Limited ("Funtastic") on 14 August 2008 and the second in procuring Ms Chen to acquire 6,300 units on 13 February 2009 in Adelaide Managed Funds Assets Backed Yield Trust ("Adelaide Managed Funds"). 87The Offender worked as an Associate in the Investment Banking Division of Credit Suisse, a multinational financial services company. By virtue of his position, he acquired inside information. 88He commenced his employment with Credit Suisse on 21 January 2008, having signed his contract of employment on 26 November 2007. He left that employment on 9 July 2010. The contract of employment included a provision concerning "Confidential Information" which imposed an obligation upon him to maintain confidentiality of such information. 89The Offender was required to understand and comply with Credit Suisse's "Bank Information Barrier Policy" which referred to a prohibition against trading or "encouraging others to trade" while in possession of inside information. It included a discussion of what constitutes "inside information and the provision of such information". Examples included proposed transactions such as acquisitions. 90The Offender completed three training sessions during his employment with Credit Suisse. These addressed the prohibition against insider trading. In June 2008, he completed an online training session which referred to the prohibition on insider trading. 91In June 2009, he attended a training session entitled "LCD - Information Barriers". This training addressed prohibitions against insider trading. It identified it as punishable by "criminal charges and possible imprisonment". 92As to the disposal of CFDs relating to Funtastic in June 2008, the Offender became a member of the Credit Suisse deal team advising the company in relation to the proposed Funtastic takeover. He was on the team between 25 June and 8 August 2008. 93At the end of this period, he recommended to Ms Chen that she acquire CFDs relating to Funtastic. It is not alleged that at the time he had any material price sensitive information concerning Funtastic that was not generally available. Consequently, on 14 August 2008, Ms Chen acquired 60,000 Funtastic CFDs. 94On 8 August 2008, Funtastic issued a public ASX announcement that it was having discussions with Archer Consortium. 95On 13 August 2008, the Offender became aware of developments which had the potential to render Funtastic a significantly less attractive acquisition target to Archer. On 14 August 2008, he received a confidential email which tended to confirm information he already possessed. On 14 August 2008, he received a further copy of that email. 96On the same date, he was confidentially informed by a colleague on the deal team that the proposed takeover "wasn't looking so good". 97On 14 August 2008, the Offender possessed relevant inside information concerning financial products relating to Funtastic and while he was in possession of it, he telephoned Ms Chen. He told her to sell the 60,000 Funtastic CFDs. In procuring her to dispose of them, he acted contrary to s 1043A(1)(d) of the Act. 98On 14 August 2008 at 2.13pm, he caused the disposal of 60,000 Funtastic CFDs in the Chen CMC Account. At the time of the disposal the underlying share investment of the CFDs had decreased and a loss of $5,100 (plus costs) was realised. 99By causing the disposal of the CFDs on 14 August 2008 at the price in question, rather than doing so after the termination of discussions between Funtastic and Archer had been announced, the Offender averted a further potential loss of $6,900. 100In relation to the Adelaide Managed Funds transactions in December 2008, Adelaide Managed Funds had been approached by Bendigo and Adelaide Bank Limited on a confidential basis with an indicative and non-binding proposal to acquire all units in Adelaide. Credit Suisse was engaged to advise Adelaide Management Funds in relation to the proposed takeover which was referred to by codenames with a view to maintaining confidentiality. 101The Offender became a member of the Credit Suisse deal team advising Adelaide Managed Funds on or about 17 December 2008 in relation to the proposed takeover. From that date until 13 February 2009, he possessed inside information about financial products relating to Adelaide Managed Funds, which included information that Bendigo and Adelaide Bank Limited were planning to make a proposal for the acquisition of 100% of the units in Adelaide at a price representing a premium of more than 50% to its current trading price. 102On 13 February 2009, the Offender, whilst in possession of the inside information, caused the acquisition through the Chen CommSec account of 6,300 Adelaide units, involving a total investment outlay of $7,371. 103On 16 February 2009, Adelaide issued a public ASX announcement which stated that Bendigo had made a proposal to acquire all the units in Adelaide Managed Funds for a stated price and an estimated stated additional cash distribution representing a premium. 104After the announcement, when trading resumed, the opening price of Adelaide Managed Funds units increased 50% on the last trading price prior to the announcement. 105On 16 February 2009, the Offender caused the disposal of 6,300 Adelaide Managed Funds units in the Chen CommSec Account and did so for a profit of $3,559.50 (less costs). 106The total profits derived from the Credit Suisse offending was $10,459.50 (less costs), of which $6,900 was the avoidance of a loss rather than a positive profit. Submissions 107In submissions, the Crown pointed to the evidence that established that the Offender had been advised of his obligations of confidentiality and the prohibitions against insider trading and that these had been reinforced during his employment. 108In relation to the Funtastic shares, the offending involved, as I have indicated, the avoidance of loss of $6,900 and a profit of $3559.50. 109The Crown submitted that the fact that the motivation for one part of the Credit Suisse offending was to avoid a loss, rather than make a profit, did not lessen the criminality in the conduct. That submission, with respect, should be accepted. 110The Crown observed that whilst the offending was less serious than the other counts on the indictment, it nonetheless involved a breach of trust on two separate occasions, the possession of high quality confidential information and the use of Ms Chen's trading account to avoid detection. 111The written submissions on behalf of the Offender stated that whilst the Offender was conscious that insider trading was wrong, he still did not understand the serious criminality of that conduct: (at [45]). 112In relation to the Funtastic deal, the Offender had only a very junior role during the six week period that he was engaged on the team and his function was limited to preparing financial models. 113It was Ms Chen who independently suggested the possibility of purchasing Funtastic stock and at that time the Offender did not have any material price sensitive information that was not publicly available. 114In mid-August 2008, after his time working on the Funtastic deal, he had a fleeting conversation with Mr Thompson, a Credit Suisse manager working on the deal, being a conversation I have referred to in which Mr Thompson said that the deal "wasn't looking so good". 115Combined with the fact that he had already considered himself responsible for Ms Chen's earlier significant losses, he immediately contacted Ms Chen after that conversation to enquire whether she had purchased Funtastic stock. It was in that context that he was told that she had and had already lost approximately $5,000. He then told her to dispose of the Funtastic CFDs immediately, in an attempt to avoid her losing more of her money. 116In relation to the Adelaide Managed Funds transaction, the submission was that the Offender was still very troubled by the Funtastic loss and in a "misguided attempt" to make it up to Ms Chen, he resolved that he would acquire Adelaide Managed Funds units for her and make a profit equivalent to the Funtastic loss. 117In the submissions for the Offender, it was emphasised that he was at the time 27 years of age and was inexperienced and held a very junior position at Credit Suisse. 118The only insider information to which he had access was the passing conversation with Mr Thompson. It was submitted that this could not be considered to be high quality confidential information. 119In relation to Funtastic, his motive was not to make a profit for himself, but solely to minimise loss incurred by Ms Chen. 120In relation to Adelaide Managed Funds, his motive was to make a profit for Ms Chen, to make up for the Funtastic loss for which he felt responsible. He did not benefit in any way from the profit gained from trading in the Adelaide Managed Funds units. 121It was accepted that misusing the confidential information in relation to the Adelaide Managed Funds matter was "a serious offence and a serious breach of trust, however the offence in this case must be distinguished from offences where the motive is purely personal gain": Written Submissions on behalf of the Offender at [62](e). 122The amounts involved in both transactions were said to be "nominal and would not have had effect on the value of the shares in Funtastic or the units in Adelaide". The conduct, it was submitted, was unlikely to have undermined the integrity of the market to any significant degree. 123In the Crown's submissions in reply it was emphasised that an important feature of the offending was the Offender's knowledge at the time, on his own evidence, that "insider trading was the wrong thing to do". He also acknowledged in cross-examination that he knew that it was contrary to company policy and was dishonest and involved a conflict of interest. Notwithstanding his knowledge in those respects, he went ahead. 124Although it is clear that the Offender's understanding of the "wrongness" of insider trading had increased by the time of the Credit Suisse offending, the nature and seriousness of the offences, as previously indicated, are in my assessment of a different and lower order to the offending in relation to the Caliburn offences. 125The receipt of the inside information from Mr Thompson, occurring as it did in effect by chance, therefore did not involve the deliberate acquisition of inside information that he gained on that occasion. Nonetheless, its use represented an intentional and serious breach of trust. Accepting the Offender's explanation as to the reason why he advised Ms Chen to dispose of the Funtastic CFDs, as I do, his conduct nonetheless occurred without any mitigating circumstances. The same can be said in relation to the Adelaide Managed Funds transaction, although it is noted that the amount invested ($7,371) is a factor to be taken into account in evaluating the gravity of the criminality involved. 126The Credit Suisse offending is, in my opinion, to be regarded as falling within the lower range of insider trading offences. (3) Hanlong Mining Offending 127I turn to the Hanlong Mining offending. 128The Hanlong Mining offences plainly represent the most serious offending amongst the three offences in question. It consists of five separate transactions contrary to s 1043A(1)(d) of the Act, committed during the Offender's employment with Hanlong. 129The Hanlong offending consists of transactions, as I have previously referred, as follows: (i) procuring Wingatta to acquire 1,252,753 Bannerman shares between 6 and 8 July 2011; (ii) procuring Ms Chen to acquire 30,000 Bannerman CFDs on 8 July 2011; (iii) Thirdly, procuring Ms Zhao to acquire 56,740 Bannerman CFDs on 8 July 2011; (iv) procuring Wingatta to acquire 10,112,154 Sundance CFDs between 13 and 15 July 2011; and, (v) procuring Ms Chen to acquire 450,000 Sundance CFDs between 13 and 15 July 2011. 130Hanlong Mining is the Australian subsidiary of the Chinese conglomerate Sichuan Hanlong Group Co Limited. The latter is the parent of a number of companies incorporated in a number of countries, including Australia. 131The Offender's employment with Hanlong Mining commenced on 26 July 2010. His contract of employment expressly required that he not disclose information received during his employment unless in specified circumstances, none of which is relevant to the present proceedings. It also provided that an employee was prohibited from dealing in securities involving inside information. 132It is necessary to say something about the entity known as the Golden Stone/Wingatta Private Fund. 133In about September 2010, Mr Xiao, the Managing Director of Hanlong Mining, and the Offender's director supervisor, invited the Offender to co-invest in a private fund with him for the purpose of jointly conducting investment for profit. 134The Chief Operations Officer of Hanlong Mining at the time, Mr Nelson Chen, also agreed, following an invitation from Mr Xiao, to jointly co-invest in the private fund, as did Mr Simon Yang, the Chief Financial Officer of Hanlong Mining. 135On instructions from Xiao and Yang, a Hong Kong company, Golden Stone Partners Limited ("Golden Stone"), was set up through a firm of accountants in Hong Kong. 136On 6 January 2011, on Xiao's instructions, the Offender then caused Wingatta to be incorporated in Australia for use as an investment vehicle for the private fund, the Golden Stone/Wingatta Private Fund. Wingatta was established as a wholly owned subsidiary of Golden Stone. 137On 10 January 2011, the Offender caused Wingatta to set up a bank account with Commonwealth Bank of Australia, ("the Wingatta Bank Account"). The Offender conducted all relevant transactions through that account. 138On 13 January 2011, he also caused Wingatta to set up, in its own name, a trading account with CMC Markets Stockbroking Limited, ("the Wingatta CMC Share Trading Account") and a CFD trading account with CMC Markets APAC, ("the Wingatta CMC CFD Trading Account") for trading by the Golden Stone/Wingatta Private Fund. 139In January 2011, an amount of $1.4 million was transferred by Mr Xiao in the amount of $700,000, the Offender ($300,000), Mr Yang ($300,000) and Mr Chen ($100,000) to Golden Stone, to capitalise the Golden Stone/Wingatta Private Fund. The four men agreed to share any profits in the same proportion as their respective investments. 140On 15 March 2011, Xiao invested a further $100,000. 141Accordingly, the four men were entitled to share any profits generated from the Private Fund in the following proportions: Xiao (53.3%), the Offender (20%), Mr Yang (20%) and Mr Chen (6.7%). 142In the period 21 January 2011 to 30 June 2011, investments were made by the Golden Stone/Wingatta Private Fund that resulted in losses of approximately $1.2 million. 143On 1 July 2011, Xiao and Yang caused $US1 million (or approximately $AUD928,591) to be transferred from Hanlong Metals Limited, a related entity of Hanlong Mining, into the Wingatta Bank Account and made available for investment by the Golden Stone/Wingatta Private Fund, specifically for the trading in what have been referred to in submissions as the Bannerman and the Sundance securities to which I will shortly refer. The transfer of the $US1 million was recorded as a loan in the accounting records of Hanlong Metals Limited. 144The Offender in due course received his share of the profits of the Private Fund through a British Virgin Islands company called Concord Rise Investments Limited. 145In accordance with the Statement of Facts (at [91]), the four men engaged in conduct, that is acts and omissions, which had the effect of concealing or obscuring the operation of, and their involvement in, the Golden Stone/Wingatta Private Fund. This included: (a) Making Golden Stone the sole shareholder of Wingatta (none of the four men were office holders or employees of Golden Stone); (b) Nominating a junior employee, a Mr Fan Zhang, who had no financial interest in the Private Fund as the sole director of Wingatta (none of the four men were office holders or employees of Wingatta); (c) Having Mr Zhang listed as the sole authorised operator of the Wingatta Bank Account, the Wingatta CMC Share Trading Account and the Wingatta CMC CFD Trading Account, when in fact the Offender operated them as part of the Golden Stone/Wingatta Private Fund. (d) Xiao, Yang, Chen and the Offender, each using companies incorporated in the British Virgin Islands, had bank accounts in Hong Kong that they controlled to make their investments in the Golden Stone/Wingatta Private Fund and to receive profits from it. As I have earlier indicated, the Offender did so via his company Concord Rise Investments Limited. (e) Each of the four men depositing the funds for their initial investments into the Golden Stone/Wingatta Private Fund into a bank account in Hong Kong in the name of Golden Stone, which then subsequently transferred the funds to the Wingatta bank account; and, (f) Not creating a written agreement in relation to the Golden Stone/Wingatta Private Fund and creating very few other records evidencing the operation and the ownership of the Golden Stone/Wingatta Private Fund. (i) Bannerman 146I turn to the Bannerman transactions. 147The Hanlong Mining count concerns transactions which the Offender procured while working in a senior management capacity for Hanlong Mining, in relation to its proposed takeovers of Bannerman Resources Limited ("Bannerman") and Sundance Resources Limited ("Sundance"). 148Bannerman is an Australian uranium exploration and development company. Between July 2010 and June 2011, Hanlong Mining engaged in confidential discussions with Bannerman relating to proposals by Hanlong Mining to acquire Bannerman ("the Proposed Bannerman Takeover"). However, no agreement was reached. The discussions had been led by Xiao as Managing Director and the Offender as Vice President, Investments. 149In early July 2011, Xiao and the Offender decided, without authorisation from Sichuan Hanlong, that Hanlong Mining would make a highly conditional indicative proposal to Bannerman after the market closed on 8 July 2011. 150They did not expect the proposal to be accepted. They decided to make the proposal for the predominate purpose of enabling them to engage in insider trading in connection with the announcement of the proposal in an attempt to recover losses previously incurred by the Golden Stone/Wingatta Private Fund. 151In particular, the four men planned to acquire Bannerman shares and/or CFDs shortly before making the proposal on 8 July 2011 and anticipated that once the proposal was announced, it would result in a significant increase in Bannerman's share price, immediately after which they could dispose of the shares and/or CFDs for a substantial profit. 152In the relevant period, namely 6 to 8 July 2011 inclusive, the Offender possessed inside information about financial products relating to Bannerman. This was to the following effect: Hanlong Mining was planning to make an imminent highly conditional proposal for the acquisition of 100% of shares in Bannerman at a price of $0.612 per share. 153In the period 6 to 8 July 2011, Bannerman's share price on the ASX ranged from $0.30 to $0.39 per share. 154Between 6 to 8 July 2011, the Offender, after consultation with Mr Xiao, whilst in possession of inside information, caused the acquisition through Wingatta's CMC Share Trading Account on behalf of the Golden Stone/Wingatta Private Fund of 1,252,753 Bannerman shares at prices between $0.32 and $0.39, for a total investment outlay of $456,105.65. In engaging in this conduct, which involved 18 separate transactions, the Offender procured Wingatta to acquire 1,252,753 Bannerman shares contrary to the provisions of s 1043A(1)(d) of the Act. 155On 8 July 2011, the Offender caused the acquisition through Chen's Second IG Markets CFD Account of 30,000 Bannerman CFDs at a price reflecting $0.385 per Bannerman share, for a total investment outlay of $1,914.40 (referencing an underlying share investment value of $11,550). In engaging in this conduct, which involved three separate transactions, the Offender procured Ms Chen to acquire 30,000 Bannerman CFDs contrary to the insider trading provisions. 156Also on 8 July 2011, the Offender, whilst in possession of inside information, caused the acquisition through the Zhao CommSec Account (his mother-in-law's account) of 56,740 Bannerman CFDs at a price reflecting $0.385 per Bannerman share for a total investment outlay of about $2,184.49 (referencing an underlying share investment of $21,844.09). 157After the close of trading on Friday 8 July 2011, the Offender informed Bannerman that Hanlong Mining intended to send to it a formal proposal for the acquisition of Bannerman the following day. On 9 July 2011, he sent an email to Bannerman attaching such a proposal. 158On Monday, 11 July 2011, prior to the opening of trading on the ASX, Bannerman issued a public announcement, classified as price sensitive, in which it stated it had a highly conditional proposal from Hanlong Mining for the acquisition of 100% of Bannerman for $0.612 per Bannerman share. 159When trading on the ASX resumed at 10.00 am on 11 July 2011, the opening price of Bannerman shares was $0.495 per share, representing 28.6% increase on the last trading price prior to the announcement of the Proposed Bannerman Takeover. 160On 11 July 2011, the Offender, after consultation with Mr Xiao, caused the disposal of the 1,252,753 Bannerman shares in the Wingatta CMC Share Trading Account (involving the profit of $97,958.20 (less costs), the disposal of 30,000 Bannerman CFDs in Chen's Second IG Markets CFD Account, (a profit of $3,480 (less costs) was realised) and the disposal of 56,740 of the Bannerman CFDs in the Zhao CommSec Account (a profit of $6,525.10 (less costs) being realised). (ii) Sundance Resources 161I turn to the Sundance Resources matter. 162Sundance is an Australian based international iron ore company, whose ordinary fully paid shares are traded on the Australian Stock Exchange. 163In about September 2010 Hanlong Mining commenced the process for the making of a proposal for the takeover of Sundance. The project was given codenames to maintain confidentiality. 164By 18 March 2011, entities within the Hanlong Group had acquired approximately 19% of Sundance's shares. Xiao and the Offender entered into discussions with Sundance with a view to Hanlong Group becoming Sundance's strategic partner and developing its major iron ore asset in a project in Africa. 165On 16 May 2011, Hanlong Mining and Sundance entered into a confidentiality agreement to enable Hanlong Mining to conduct due diligence in the relation to Sundance and the African project. The confidentiality agreement was signed by Xiao and the Offender on behalf of Hanlong Mining. 166The Offender worked on the proposed Sundance takeover along with Xiao. In that period he received confidential information relating to the proposed takeover. 167Particulars of the two acquisitions in relation to Sundance, the subject of the count, are as follows: (i) Between 13 and 15 July 2011, the offender, after consultation with Xiao, whilst in possession of inside information, caused the acquisition through Wingatta's CMD CFD Trading Account on behalf of Wingatta of 10,112,154 Sundance CFDs for a total investment outlay of $1,011,215.40. This conduct involved nine separate acquisitions. (ii) Between 13 and 15 July 2011 the offender, whilst in possession of inside information, caused the acquisition through Chen's Second IG Markets CFD Account of 450,000 Sundance CFDs involving a total outlay of $36,000. 168In relation to the acquisitions concerning Sundance, the Offender stated in his affidavit: "During the time of purchasing the Sundance CFDs on behalf of the Golden Stone/Wingatta Private Fund I also purchased 450,000 Sundance CFDs through the Second IG Trading Account. Again there is no excuse for this, other than I was swept up in the moment, had lost my sense of judgment and was entirely motivated by personal gain. I acquired the Sundance CFDs through the Second IG Trading Account because I wanted to conceal those trades." 169On 18 July 2011 the Offender, following consultation with Xiao, caused the disposal of 10,012,154 Sundance CFDs in the Wingatta's CMC CFD Trading Account with a profit of 1,090,262.33 (less costs) being realised, of which the Offender's share was $218,052.46 (less costs). On the disposal of the 450,000 Sundance CFDs in Chen's Second IG Markets CFD Account, the Offender realised a profit of $57,425 (less costs). 170The total profit derived from the Hanlong Mining offending was $1,255,560.63 (less costs), of which the Offender's share, based on the original 20% investment in the Private Fund, is calculated at $305,074.20 (less costs). Submissions 171I turn to the submissions. The Crown submitted that the Hanlong Mining offending, though occurring over a short period of time, and the associated conduct, including the Offender's role in it, exhibited a high degree of premeditation, planning and concealment. 172The Crown contended that although the Offender's conduct must be considered in light of Xiao's involvement, in particular, directions and instructions given by him, nonetheless the Offender voluntarily engaged in insider trading at Hanlong Mining after having committed similar offences at two previous employers. 173Three of the five sets of transactions, the Crown observed, were solely for the Offender's own benefit using accounts in the name of Ms Chen and his mother-in-law. 174The Offender, the Crown observed, along with other members of the fund, established an elaborate corporate structure to conceal their involvement. The Offender incorporated his own company, as I have earlier indicated, as part of the scheme. 175The Crown also observed that the Offender was responsible for executing decisions regarding investments by Wingatta. 176It was observed that the Hanlong Mining offending involved the investment of $1,507,419.94 in Bannerman and Sundance shares and CFDs, of which the Offender's share was $333,563.10. The total profit and the Offender's share, based on his 20% interest being as I previously stated. 177The Crown also submitted that the Offender's role in the creation of the inside information relating to Bannerman was of "critical importance". 178On behalf of the Offender it was submitted that consideration has to be given to the Offender's seniority and position within Hanlong Mining. It was noted that he was subordinate to Xiao, who was described as "a domineering and authoritative" person who became a force in the Offender's life. Additionally, the other members of the management team were older and senior to the Offender. 179It was also contended on behalf of the Offender that he was exposed to ridicule over his naïvety in relation to insider trading, which he claimed he was led to understand by Xiao that it was a widespread practice. 180Further emphasis was given to the fact that it was Xiao who had the controlling interest in the Private Fund and that he maintained control of it. The various activities undertaken by the Offender were subject to instructions and directions from Xiao. 181In relation to the proposal concerning the Bannerman takeover, it was emphasised that the Offender prepared the draft proposal under instructions from Xiao, who was placing considerable pressure on him to purchase Bannerman shares. 182It was submitted that the "enormity" of what the Offender was doing finally dawned on him when he recognised a serious illegality involved in drafting the takeover proposal for Bannerman, on the one hand, and buying shares on the other. 183It was submitted that at the time he was extremely torn between his conscience and realisation that, if he seriously challenged Xiao or did not comply with his instructions, he was potentially risking his job and a future in funds management planning that had been discussed between him and Xiao. It would mean also that he would be forced to give up the lavish lifestyle to which he had, by then, become accustomed. 184It was contended that the Offender endeavoured to convince Xiao to delay in sending the Bannerman proposal, but was unsuccessful in that regard. It was accepted that the Offender simply did not possess the "courage" to walk away from Xiao and to rebuild his future elsewhere. 185The written submissions for the Offender noted that the Offender accepts that there is no excuse for his personal acquisitions and that he was "simply swept up in the moment and lost all sense of judgment and was entirely motivated by personal gain". Written submissions on sentence at [97]. 186In relation to the acquisition of the Sundance CFDs, it was noted in the submissions for the Offender that this occurred only days after the acquisition and disposal of the Bannerman shares. In that context, it was contended the Offender did not consider questioning Xiao's instructions. 187The submissions emphasised that the Offender at all times was subordinate to Xiao and had fallen under his influence and that it was Xiao who was the architect of the Private Fund and effectively made all the decisions in relation to its establishment, structure and funding. 188In submissions, the subjective circumstances and other matters were addressed. These matters will be dealt with later in these remarks. Conclusions 189The Offender in respect of all offences was, at the time of the commission, a "true insider", being an employee in a position of trust who took advantage of inside information obtained through his employment with Caliburn, Credit Suisse and Hanlong Mining. An offence committed by a true insider, as earlier indicated, is usually regarded as more serious than one committed by a tippee: R v Bateson [2011] NSWSC 643 at [28]; Doff, supra, at [57]. 190The position and seniority of an employee, as I also indicated, is a relevant matter. Such provides, amongst other things, a greater ability to avoid detection and represents a more serious breach of trust. R v Scott (7 November 1991, unreported); R v Pantano, supra, at 338. 191The Offender in his affidavit stated that when he joined Credit Suisse in January 2008 he knew about insider trading; [64]. As I have earlier noted, he was informed in his training at Credit Suisse that criminal punishment could be imposed for insider trading. In cross-examination he stated that by the latter part of 2007, in relation to insider trading, he had gained an understanding that it involved breaking the law, in particular the criminal law. He of course had earlier appreciated that insider trading was contrary to company policy and it involved dishonesty and provided a circumstance in which serious conflicts of interest would arise. I am satisfied to the requisite standard that the Offender's understanding and appreciation of the criminal nature of insider trading existed throughout his period of employment with Hanlong Mining. 192In evaluating the gravity of this offending the following matters are to be taken into account. The Hanlong Mining count, as I have stated, consists of five separate sets of transactions. These were procured by the Offender while he was working in a senior management position for Hanlong Mining in relation to the proposed takeovers of Bannerman Resources Limited and Sundance Resources Limited. Three of the five sets of transactions were for his profit alone, trading in accounts in the name of others. 193In relation to the Bannerman acquisitions, whilst he was centrally involved in the establishment of the scheme involving in the Golden Stone/Wingatta Private Fund, his participation must be placed in its proper setting. The remarks that follow, accordingly, are directed to the relevant contextual matters. 194The idea and the proposal for the establishment of the Golden Stone/Wingatta Private Fund came from Xiao, the Managing Director of Hanlong Mining and who was the Offender's direct supervisor. It was Xiao who invited the Offender and the others to participate by investing in the fund. 195Further, it was Xiao and Yang who gave instructions on 29 December 2010 to set up the Hong Kong company. Whilst the Offender caused Wingatta to be incorporated in Australia and took steps to set up the Wingatta bank account and the trading account, those matters were carried out on the instructions of Xiao. In other words, a distinction is to be made between Xiao, who proposed the establishment of the Private Fund and who issued instructions on the one hand, and the Offender's participation as to the mechanics of setting up and operating the scheme. Additionally, it was Xiao who had the major interest in the Private Fund and he at all relevant times issued instructions to the Offender as his supervisor. 196In emphasising the Offender's somewhat lessor role than Xiao in the Bannerman acquisitions, I do not in any way overlook the fact that the Offender held a substantial interest in the Private Fund and was no doubt motivated by self-interest in complying with Xiao's directions. Those comments also apply to the Sundance acquisitions. 197The Offender, along with other members of the company, including in particular his direct supervisor Xiao, established what the Crown properly submitted was "an elaborate corporate structure" designed to conceal their involvement in Wingatta. After establishing the Hong Kong company, it involved nominating a junior employee with no interest in the Private Fund as the sole director and listing him as the sole operator of the Wingatta bank and trading accounts. 198The highly conditional indicative proposal that was put to Bannerman after the market closed on 8 July 2011 involved a serious abuse of position by both Xiao and the Offender, although of the two men, Xiao must be regarded as the principal person responsible for the proposal being put forward. The conditional indicative proposal, it is also to be noted, was put forward without any authorisation from Sichuan Hanlong. It was formulated for the predominant purpose of enabling Xiao and the other investors in the private fund, including the Offender, to engage in insider trading following the announcement of the proposal in an attempt to recover the losses that had previously been incurred by the Golden Stone/Wingatta Private Fund. 199As the Crown observed, it is clear that although the Offender was party to creating the circumstances for the illegal acquisition of Bannerman CFDs, he is to be sentenced for insider trading and not for market manipulation offences. His involvement in making the takeover proposal as the Crown submitted is, however, relevant to the nature and circumstances of the offending under s 16A(2)(a) of the Crimes Act 1914 (Cth). 200A person who is involved in the creation and the control of a takeover offer for the predominant purpose of insider trading clearly is in possession of very high quality inside information. This is particularly so where an insider can secretly create such information. The Crown referred in its submissions to the decision in R v De Silva [2011] NSWSC 243, in which Buddin J at [60]-[61] accepted that the Offender in that case who created and controlled price sensitive inside information, used it for his own financial advantage and this was relevant to the objective seriousness of the offence. 201I further accept, as the Crown observed, that in relation to Hanlong Mining, the victims included counter-parties who traded after the announcement of the Bannerman takeover bid, unaware that the offer was disingenuous. 202In relation to each of the offences in question, the Offender intentionally acquired the financial products the subject of the relevant acquisitions, with a view to maximising his own personal wealth and that of the Golden Stone/Wingatta Private Fund. He did so with the knowledge that such conduct was in breach of his employment obligations and was wrong, in the sense that it was in breach of his obligations as an employee and that it involved premeditated planning to avoid detection and involved dishonesty. He was additionally aware that the Hanlong Mining offences constituted offences contrary to the provisions of the insider trading provisions in the Act. 203In relation to the Caliburn, Credit Suisse and Hanlong Mining offences, I accept the Crown's submission that in this case there were at least three classes of victim, namely: (i) The market, including in particular the investing community at large; (ii) The employers, by reason of the breach of trust that had been bestowed by each of the Offender's three employers. In addition, in the case of the Caliburn and Credit Suisse counts, the Offender misappropriated client's price sensitive information; (iii) Individuals being the class of persons who trade with an Offender without having access to that inside information. In particular, in this case the Offender procured transactions prior to market announcements with counter-parties ignorant of the insider information about to be released to the public. As the Crown observed, while the Offender sought to maximise profit through the use of CFDs, those on the other side of the transactions faced the potential for increased losses. 204In determining the appropriate sentences to be imposed, it is important to bring into account those factors which operate in the Offender's favour. They include: (i) His early pleas of guilty, which saved what would have inevitably been a trial of some length and complexity, and demonstrated a willingness to facilitate the course of justice. On the basis of the early pleas, the Offender is entitled to the maximum discount on sentence, namely 25%. The sentence to be imposed will be determined on that basis. (ii) That the Offender at the time of the offences was a comparatively young man with limited experience in the financial world and whose conduct in many respects exhibited some immaturity. (iii) Also to be weighed in his favour is the evidence concerning his prior good character at the time of the commission of the relevant offences. He had not previously been convicted of a criminal offence. His background demonstrates that he had a disciplined attitude to his university studies and succeeded at a comparatively high level. In his relatively short career he proved himself to be a hard working employee. 205There is no need for me to set out all the "checklist" items in s 16A(2) of the Crimes Act 1912 (Cth). I have given consideration to the relevant items, in particular, in specific terms in these remarks on sentence. The checklist, as I have earlier indicated, is not exhaustive. There is one additional matter to which I should make specific reference. 206In the assessment of the nature and circumstances of the Offender's offences and his culpability in respect of them, some account must be made of the employment environment in which he worked with Hanlong Mining. That environment was a highly unusual one. Whereas in most cases the evidence establishes that the particular employers in question established and enforced appropriate standards of integrity and the prohibitions against insider trading, the Offender's work environment at Hanlong Mining was an exception. 207The Managing Director, Xiao, was described in evidence, amongst other things, as a domineering personality. The Offender first commenced a relationship with him in mid-2009 and was always highly impressed and influenced by him. Xiao was, it appears from the evidence in the present case, a person who exerted a powerful negative influence on others. 208The influence of a poisonous work culture or environment has been noted as a relevant circumstance. In R v Agius; R v Zerafa [2012] NSWSC 978, her Honour Simpson J in her sentencing remarks observed as follows: "Mr Zerafa is in a very different position. He was born in October 1975. He is now almost 37 years of age. He is married with two young children (now eight and six years of age) and has no criminal convictions." 209A little later: "I am satisfied that his good character is a matter appropriate to be taken into account... He took up employment in the office of Owen T Daniel & Co in 1997 when he was 21 or 22 years of age. He had previously had very little experience, and none in a professional office. Although he could not have known it at the time, the environment into which he was inducted was morally poisonous. His employer, Mr Daniel, was a very corrupt man. He was, however, also gregarious, charming and charismatic. He was generous to Mr Zerafa, who was an impressionable and vulnerable young man. The tragedy for Mr Zerafa is that he has never been exposed to an ethical working environment. As I have earlier mentioned, I am satisfied that he did not engage himself in this conspiracy of his own initiative, but did so under the malign influence of Mr Daniel. I also take into account, to his credit, that he did make an attempt in 2004 to persuade Mr Daniel to cease involvement and that notwithstanding Mr Daniel's rebuff, that attempt had the effect of limiting, if not bringing to an end, the participation of clients of the firm in the scheme. He is entitled to credit for that stand." (at [80]-[82]) 210In the case of Zerafa there were a number of factual circumstances that distinguish the offence and the Offender's position in that case from the present. However, the point made by her Honour Simpson J as to a morally unhealthy work environment has some relevance in assessing the Offender's culpability, although not to the same extent as it had in Zerafa. Subjective Circumstances 211I turn to the other subjective circumstances. 212The Offender is a young man with a five-year-old son. His wife is pregnant with their second child. The baby is due in July 2013. The evidence establishes that he is a loving and supporting husband and a dedicated family man. For some time since the offences he has been the primary carer for his son, his wife having paid employment. 213I accept that there were disadvantages in his background and that he consistently demonstrated a capacity for sustained hard work. 214I accept, as I have indicated, that the events leading to him being charged with the present offences and the events flowing from the charges have been traumatic to him, his wife and other family members generally. He was referred by his general practitioner to Dr Mark Rowe, consultant psychiatrist. Dr Rowe in his report of 5 November 2012, stated that he considered on the clinical history that according to the DSMIV (the Diagnostic and Statistical Manual of Mental Health Disorders, 4th edition) that the Offender most likely has suffered a Bipolar Disorder Not Otherwise Specified throughout his adult life and fulfils the criteria for Bipolar Disorder. 215Dr Rowe prescribed a course of medical treatment by way of a mood stabilising medical drug for which he has received some benefit. 216Dr Rowe has recommended that he have access to regular mental health reviews and treatment within the relevant facility if he is to be sentenced to a custodial sentence. 217The imposition of a custodial sentence of course will adversely impact upon his wife and family. I accept that his family is under significant financial pressure and that their new baby will present additional challenges, his wife presently working four days a week and will be required to take maternity leave. However, I do not consider that such impact can be assessed to be so "exceptional" as the established sentencing principles do require before a sentence can be reduced on that account. 218Whilst I take into account in a general sense the media attention in relation to the Hanlong Mining offences (including photographs) and that the Offender has greatly suffered from the public disgrace, shame and humiliation as a result, adverse publicity may only be considered to amount to extra-curial punishment in what may be classed as exceptional or extreme cases. I have concluded that the evidence does not establish that this case rises to that level. 219I also take into account the fact that his guilty pleas to these offences may well effectively mean that he has no re-employment prospects in the finance industry and may otherwise impact adversely on his future employment prospects. 220I have earlier indicated that the Offender's contrition and remorse is a factor to be taken into account - and in this case it is substantial - and that he has fully accepted his responsibility for his offending. Having regard to those matters, his age, family support and intelligence, I have assessed the prospects of him re-offending as remote. Indeed, on consideration of all the evidence, I consider that he has good rehabilitation prospects. 221This conclusion is reached on the basis of his good character, his plea of guilty, his obvious and genuine contrition and acceptance of responsibility for his offences, and the fact that he has the support of his family. In these circumstances there is little requirement for the sentences to be imposed to reflect the need for personal deterrence. 222On that subject I should record that I was impressed with the Offender during the course of his oral evidence at the sentencing hearing. His answers were responsive. They were given without prevarication, notwithstanding that some answers given by him were directly against his interests. The impression given throughout his oral evidence was that he deeply regretted the offending and was fully prepared to acknowledge the seriousness of his conduct. 223A number of testimonial statements were tendered in evidence. I have read and taken into account the matters contained in the statements of Mr Robert Steiner, Mr S J Halden, Mr N Lawrence, Mr Z Huang, the affidavit of the Offender's wife sworn 20 November 2012 and the affidavit of Anthony Woods sworn 19 November 2012. They each identify particular qualities of the Offender, including his dedication to family, his capacity for hard work, his generosity and his intellectual capacity. They all testify as to his genuine remorse and contrition. General Sentencing Factors 224Although the Offender is a comparatively young man, he nonetheless had demonstrated a significant level of intelligence and a degree of maturity, although I accept that his experience in the financial field was, at the time of his employment with Caliburn and Credit Suisse, as I have indicated, limited. He had, however, previous employment, had engaged in trading in the Australian share market and in leveraged products and was married at the age of 24. 225While the Offender's youth and relative immaturity may play a role in downgrading or lessening the importance of general deterrence, I do not consider in the circumstances of the present case that the Offender's level of maturity and experience diminishes the need to give effect to the principle of general deterrence. Indeed, it is important that young adults as well as more mature persons clearly understand that insider trading is a criminal offence and one that can attract significant custodial sentences and substantial fines. Increase in the Maximum Penalty for the Offence of Insider Trading 226In relation to the Hanlong Mining offence, I have considered the observations of Hoeben J (as his Honour then was) in R v O'Brien [2011] NSWSC 1553 at [61] and at [69] to [70] and the written submissions on the Offender's behalf and on behalf of the Crown. 227The High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 85 ALJR 195 has emphasised that in determining the sentence to be passed in respect of any person for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. What this Court is not to do is to look for some kind of numerical equivalence by reference to other sentences. 228I have had regard to the increase in penalty which occurred before the Hanlong Mining offending occurred as one of the matters to be taken into account with all other relevant sentencing considerations. Assistance/Co-Operation 229The Offender's co-operation with ASIC is a factor which operates in his favour and I take it into account in determining the sentence. However, that said, his co-operation has to be placed in context. 230Prior to his decision to cooperate with ASIC on 13 March 2012, ASIC had been conducting an eight-month investigation into him and others, and the evidence, in particular that of Mr Luxford, establishes that ASIC had expended considerable resources in pursuing those investigations. 231In sentencing the Offender, I take into account the evidence of his past co-operation with ASIC and assistance given, and in the other respects to which I have referred. In my assessment, however, the level of co-operation and assistance, though material, could not be rated as high or exceptional. I have determined that it should be given some weight, mindful as I am that there is a need to ensure that the sentences to be imposed are appropriate to the offending. 232I take into account, as evidence of co-operation, the fact that the Offender, in relation to an application made under the Proceeds of Crime Act, consented to an order under that Act in the sum of $371,348.20 and has paid that amount under the order. Future Co-Operation 233I have considered the evidence, including in particular the evidence of Mr Luxford in relation to what has been referred to as future co-operation, and the primary submissions of the Crown at [85]-[87] of those submissions and for the Offender in his Primary Submissions at [128]-[181] and in the Further Submissions for the Offender at [25]-[26]. I have concluded that the Offender is entitled to a combined discount for his guilty plea, being 25% as previously stated, and future assistance, 10%, making a combined discount of 35%. Other Matters 234I take into account that upon conviction the Offender is automatically disqualified from managing a corporation for a period of five years under s 206B(1)(i), (2) of the Act. Although provision exists for a court to grant leave to a disqualified person to manage a corporation: s 206G of the Act, it is appropriate for a sentencing court to take the issue of disqualification into account on sentence and note that the disqualification is a matter which is designed to protect the public. I do take that matter into account. Sentencing Decisions 235I have been provided with submissions on behalf of the Crown and the Offender in relation to decisions and sentencing outcomes in other insider trading cases. The Crown also provided copies of relevant decisions. 236The written submissions for the Offender contain a table of comparisons of the sentencing decisions and the Crown provided a similar document. 237The decisions, of course, can only provide a guide as each case is to be determined on its particular facts and circumstances. I have, however, found the sentencing comparison of use as a general guide. 238In taking into account all the relevant factors, no other conclusion is open other than that the offending in this case, in particular the Caliburn offending and the Hanlong Mining offending, represent serious instances of insider trading. Notwithstanding the Offender's favourable subjective case, given the objective seriousness of the offences and the importance of general deterrence, I have determined that the requirements of s 17A of the Crimes Act 1914 (Cth) are satisfied and that sentences of full-time imprisonment with time to serve, as I will indicate, are the only appropriate sentences. Totality 239I am required in accordance with established principles, in particular those enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610 and also by the provisions of s 19(2) of the Crimes Act, to determine the appropriate sentence for each offence and the commencement date for each offence. In the course of doing so, I have considered how questions of accumulation or concurrence and totality should be dealt with. 240I have determined that whilst the sentence for the Credit Suisse offence, being the less serious of all the offences, should be concurrent with the sentence to be imposed in respect of the Caliburn offence, the sentence for the Caliburn offence should be served partly concurrently and partly cumulatively with the sentence to be imposed with respect to the Hanlong Mining offence in accordance with the terms of the sentencing orders that I will specify. In that respect I have determined that the sentence for the Hanlong Mining offence should be accumulated by a period of three months on the Caliburn sentence. 241In so doing, I consider the principle of totality will be given effect as is appropriate in the circumstances of this case. I have also determined that in all the circumstances, there is no need to impose a fine. Those circumstances include the Offender's prior good record, his genuine contrition, his good rehabilitation prospects and the punishment to be imposed by the sentencing orders. 242Mr Zhu, would you stand, please. 243Bo Shi Zhu, I sentence you to the following terms of imprisonment: (i) In respect of the offences committed by you between 6 November 2006 and 23 November 2007, whilst employed by Caliburn Partnership Pty Ltd, contrary to s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), I sentence you to a term of imprisonment of six months to commence on 15 February 2013 and to expire on 14 August 2013. (ii) In respect of the offences committed by you between 21 January 2008 and 9 July 2010, whilst employed by Credit Suisse Management (Australia) Pty Ltd, contrary to s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), I sentence you to a fixed term of imprisonment of three months to commence on 15 February 2013 and to expire on 14 May 2013. (iii) In respect of the offences committed by you between 17 July 2010 and 29 September 2011, whilst employed by Hanlong Mining Investments Pty Ltd, contrary to the provisions of s 1043A(1)(d) and s 1311(1)(a) of the Corporations Act 2001 (Cth), I sentence you to a term of imprisonment of two years to commence on 15 May 2013 and to expire on 14 May 2015. I direct that you be released on 14 May 2014 at the expiration of 12 months of that sentence on a recognisance that you be of good behaviour during the balance of the term upon your giving security in the sum of $1,000 without surety. 244Accordingly, the total effective pre-release period of imprisonment under the sentences which I have imposed will be a period of 15 months commencing on 15 February 2013 and expiring on 14 May 2014. 245Would the officers from Corrective Services please escort the Offender. 246Any matters arising? 247INDYK: No, your Honour. 248HIS HONOUR: Nothing? 249MANGIONI: Only whether or not in the circumstances of the orders that have been made, whether an intensive correction order might be an appropriate remedy. 250HIS HONOUR: I've determined the matter of sentence. The only alternatives were the ones I have specified and I have sentenced in accordance with a custodial sentence, Mr Mangioni. 251MANGIONI: Thank you, your Honour. ********** 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. Decision last updated: 04 March 2013