Director of Public Prosecutions (Cth) v Northcote [2014] NSWCCA 26

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (Cth) v Northcote [2014] NSWCCA 26 Hearing dates: 20/02/2014 Decision date: 14 March 2014 Before: Hoeben CJ at CL at [1] Garling J at [2] R S Hulme AJ at [130] Decision: (1) Appeal allowed. (2) Quash the sentences with respect to each offence imposed in the District Court of NSW (Jeffreys DCJ) on 17 September 2013. (3) In lieu thereof impose the following sentences: (a) On the offence of "Use Position as a Director Dishonestly" contrary to s 184(2) Corporations Act 2001, (Cth) the respondent Mr Bryan Northcote is sentenced to a term of imprisonment for a period of 3 years and 6 months commencing on 27 September 2013 and expiring on 26 March 2017. (b) On the first offence of "Making a False and Misleading Statement in a Document lodged with ASIC", contrary to s 1308(2) Corporations Act 2001 (Cth), the respondent Mr Bryan Northcote is sentenced to a term of imprisonment for a period of 1 year commencing on 27 September 2013 and expiring on 26 September 2014. (c) On the second offence of "Making a False and Misleading Statement in a Document lodged with ASIC", contrary to s 1308(2) Corporations Act 2001 (Cth), the respondent Mr Bryan Northcote is sentenced to a term of imprisonment for a period of 1 year commencing on 27 September 2013 and expiring on 26 September 2014. (4) The Court directs that the respondent be released on 26 September 2015, being the expiration of 2 years of the sentence with respect to the offence contrary to s 184(2) of the Corporations Act 2001 (Cth), upon a recognisance that he be of good behaviour during the balance of the term of that sentence and upon him giving security in the sum of $1,000 without surety. Catchwords: CRIMINAL LAW - appeal - Crown appeal against sentence - offence of using position as executive and managing director of company dishonestly, with intention of directly or indirectly gaining an advantage contrary to s184(2) Corporations Act 2001 (Cth) - two offences of making false and misleading statement in a document filed with the Australian Securities Investment Commission contrary to s 1308(2) Corporations Act 2001 (Cth) - guilty plea - total sentence of two years imprisonment to be served by way of intensive correction in the community - whether sentencing judge erred in assessing the objective seriousness of the offences by failing to adequately take into account material considerations - whether sentence manifestly inadequate - importance of general deterrence Legislation Cited: Corporations Act 2001 (Cth) Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Cases Cited: Director of Public Prosecutions v Bulfin [1998] 4 VR 114 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Kwok v R [2007] NSWCCA 281; (2007) 64 ACSR 307 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Allpass (1993) 72 A Crim R 561 R v Boulden [2006] NSWSC 1274 R v Dodd (1991) 57 A Crim R 349 R v Donald [2013] NSWCCA 238 R v Geddes [1936] 36 SR (NSW) 554 R v Hawkins (1989) 45 A Crim R 430 R v Hinchliffe [2013] NSWCCA 327 R v JW [2010] NSWCCA 49 R v Pogson, R v Lapham and R v Martin [2012] NSWCCA 225; (2012) 82 NSWLR 60 R v Zamagias [2002] NSWCCA 17 The Queen v Tait [1979] 46 FLR 386 Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Director of Public Prosecutions (Cth) (Appellant) Bryan Raymond Northcote (Respondent) Representation: Counsel: R Bromwich SC / R Rankin (Appellant) W G Roser SC / S Goodman (Respondent) Solicitors: Commonwealth DPP (Appellant) Rankin Ellison Lawyers (Respondent) File Number(s): 2012/278100 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-09-17 00:00:00 Before: Jeffreys DCJ File Number(s): 2012/278100