Heath v Regina [2016] NSWCCA 24

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Heath v Regina [2016] NSWCCA 24 Hearing dates: 2 February 2016 Date of orders: 25 February 2016 Decision date: 25 February 2016 Before: Simpson JA at [1] Johnson J at [2] McCallum J at [3] Decision: Leave to appeal granted; appeal allowed; sentences quashed; applicant re-sentenced, for the matched trade offence, to a term of imprisonment of 18 months commencing on 25 September 2015 and expiring on 24 March 2017; for the market manipulation offence, to a term of imprisonment of 18 months commencing on 25 December 2015 and expiring on 24 June 2017; applicant to be released today, 25 February 2016, on a recognisance release order in the sum of $10,000 without surety to be of good behaviour for the period ending on 24 June 2017. Catchwords: CRIMINAL LAW – appeal against sentence – market misconduct offences – whether sentencing judge erred in rejecting applicant's evidence as to lack of knowledge of criminality – where applicant's evidence unchallenged – impact on judge's assessment of objective seriousness – whether applicant was denied procedural fairness

CRIMINAL LAW – appeal against sentence – market misconduct offences – whether sentencing judge misapprehended seriousness of offending – where applicant's unchallenged evidence addressed extent of impact of his offending on the market

CRIMINAL LAW – appeal against sentence – proper approach where both error and denial of procedural fairness established – where remittal of proceedings would defeat the object of the appeal – consideration of appropriateness of appellate court re-exercising the sentencing discretion Legislation Cited: Australian Securities and Investment Commission Act 2001(Cth), s19 Corporations Act 2001 (Cth), ss 1041A(c), 1041B(1)(b) Crimes Act 1914 (Cth), s 16A(2)(p) Criminal Code 1995 (Cth), Ch 1, cl 5.6(2), cl 5.4(4) Cases Cited: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Fame Decorator Agencies Pty Ltd v Jeffries Industries Ltd (1998) 28 ACSR 58 Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 Khoo v R [2013] NSWCCA 323 O'Neil-Shaw v R [2010] NSWCCA 42 R v Glynatsis [2013] NSWCCA 131; 230 A Crim R 99 R v Hinton [2001] NSWCCA 405; 134 A Crim R 286 R v Togias [2001] NSWCCA 522; 127 A Crim R 23 Category: Principal judgment Parties: Nigel Derek Heath (Applicant) Regina (Crown) Representation: Counsel: M Thangaraj SC (Applicant) A N Williams (Crown)