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Australian Securities and Investments Commission v Gillespie[2018] QDC 199

Australian Securities and Investments Commission v Gillespie[2018] QDC 199

DISTRICT COURT OF QUEENSLAND

CITATION:

Australian Securities and Investments Commission v Gillespie [2018] QDC 199

PARTIES:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

(appellant)

v

RICKY DAVID GILLESPIE

(respondent)

FILE NO/S:

Appeal 4957 of 2017

DIVISION:

Civil

PROCEEDING:

Appeal

DELIVERED ON:

19 September 2018 – ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2018

JUDGE:

Rosengren DCJ

ORDER:

  1. The appeal is allowed.
  2. The sentence imposed, to the extent that no conviction is recorded, is set aside.
  3. A conviction is recorded.

CATCHWORDS:

CRIMINAL LAW – s 222 APPEAL – APPEAL AGAINST SENTENCE – where the respondent pleaded guilty to one count of forgery constituted by 33 counts of forgery – where the penalty imposed was a $3,000 fine with no conviction recorded – where a lengthy period of time elapsed between the offending and the sentencing – where the respondent has not re-offended – where the appellant appeals the sentence on the grounds that it was manifestly inadequate in that it did not record a conviction – where the appellant further contends that the learned Magistrate erred in the factual basis for the sentence – whether the decision not to record a conviction is manifestly inadequate in the circumstances 

Justices Act 1886 (Qld) s 222

Penalties and Sentences Act 1992 (Qld) ss 3, 9 12

House v R [1936] 55 CLR 499, cited

R v Ikin [2007] QCA 224, cited

Hili v R [2010] 242 CLR 50, cited

Wong v R [2001] 207 CLR 584, cited

Dinsdale v R [2000] 202 CLR 321, cited

R v Briese; ex parte Attorney-General [1998] 1 Qd R 487, cited

R v Sanders [2007] QCA 165, cited

R v Brown; ex parte Attorney-General [1994] 2 Qd R 182, cited

R v Goodwin; ex parte Attorney-General (Qld) [2014] QCA 345, cited

Director of Public Prosecutions v OJA [2007] 172 A Crim R 181, cited

R v McConnell [2018] QCA 107, cited

R v RAZ; ex parte Attorney-General (Qld) [2018] QCA 178, cited

R v Wall [2002] NSWCCA 42, cited

R v L; ex parte Attorney-General (Qld) [1996] 2 Qd R 63, cited

R v Moxon [2015] QCA 65, cited

COUNSEL:

D A Holliday for the appellant

D Firth for the respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions for the appellant

Gilshenan & Luton for the respondent

  1. [1]
    ROSENGREN DCJ: On the 24th of October 2017, in the Magistrates Court at Brisbane, the respondent pleaded guilty to one count of forgery under section 488 of the Criminal Code, constituted by 33 acts of forgery, as is permitted by section 568(5) of the Code.
  1. [2]
    The sole ground for the appeal in the Notice of Appeal filed on the 12th of December 2017 was that the sentence is manifestly inadequate, in the sense that the Magistrate did not record a conviction.
  1. [3]
    At the commencement of the hearing of the appeal last Friday, the appellant made an application to add an additional ground of appeal, namely that the Magistrate erred in concluding that only one of the documents contained incorrect facts. This issue had been raised in paragraph 30 of the appellant’s outline of argument, albeit not as a separate ground. This application was not opposed by the respondent and I allowed it.
  1. [4]
    For the reasons which I shall explain, the appeal should be allowed.

Nature of s 222 appeals

  1. [5]
    The appeal is by way of rehearing of the evidence. Section 222(2)(c) of the Justices Act 1886 (Qld) provides that where a defendant pleads guilty, an appeal can only be brought on the sole ground that a fine, penalty or punishment was excessive or inadequate.
  1. [6]
    In the following frequently cited passage of House v R,[1]the majority observed:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the Appellate Court consider that if they had been in the position of the primary judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant materials to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

  1. [7]
    It is not necessary to identify a particular error in the exercise of the discretion. As Keane J, as he then was, observed in R v Ikin:

“The judgment appealed from is a discretionary one. An appeal can succeed only if an error of the kind described in House v R (1936) 55 CLR 499 at 504 – 505 has occurred. In this regard, there may be cases where the sentence is so unreasonable or plainly unjust in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive. But that having been said, as was emphasised by Justice Kirby in Dinsdale v R [2000] 202 CLR 321 at 341, this Court should allow an appeal against sentence only where the error is clearly apparent.”[2]

  1. [8]
    In Hili v R, the plurity of Chief Justice French and Justices Gummow, Hayne, Crennan, Kiefel and Bell in the High Court, observed that:

“intervention is warranted only where the difference is such that, in all the circumstances, the Appellate Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of the reasons.” That is quoting Wong v R [2001] 207 CLR 584 at [58]. With reference to Dinsdale v R [2000] 202 CLR 321, the High Court stated, “manifest inadequacy of sentence, like manifest excess, is a conclusion.”[3]

Maximum penalty and sentence imposed

  1. [9]
    The maximum penalty for the offence of forgery is 3 years’ imprisonment. The sentence that was imposed by the learned Magistrate on the 12th of December 2017 was a $3000 fine and no conviction was recorded.

Sentencing framework

  1. [10]
    Turning to the sentencing framework, the Penalties and Sentences Act 1992 (‘the PSA’) creates the regulatory framework which is relevant to this appeal. The purposes of the PSA are set out in s 3. Pursuant to s 3(3), they include providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstance, ensuring that protection of the community is a paramount consideration.
  1. [11]
    Part 2 of the PSA sets out the governing principles for sentencing offenders such as the appellant. S9(2)(a) refers to the various sentencing principles, including that a sentence of imprisonment should only be imposed as a last resort.
  1. [12]
    The Court has a discretion whether to record a conviction. Pursuant to s 12 of the PSA, in determining whether to record a conviction, it is necessary to consider all of the circumstance, including the nature of the offence, thethe respondent’s character and age, and the impact or lack thereof that the recording of a conviction would have on the respondent’s economic or social wellbeing or his chances of finding employment.
  1. [13]
    In R v Briese; ex parte Attorney-General[4], it was held that in exercising its discretion as to whether to record a conviction or not, the Court must balance the public interest in having notice of a criminal history, against the interests of the offender and his or her prospects for rehabilitation.
  1. [14]
    In R v Sanders the Court of Appeal confirmed what Macrossan CJ said in R v Brown; ex parte Attorney-General [1994] 2 Qd R 182 at 185, as to the correct approach to the exercise of the discretion conferred by section 12, as follows:

“Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing Court. The opening words of section 12 subsection (2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances. In my opinion, nothing justified granting a general predominance to one of those specified features rather than to another. They must be kept in balance and none of them overlooked, although in a particularly case, one, rather than another, may have claim to a greater weight.”[5]

Circumstances of the offending

  1. [15]
    The respondent was a financial planner with an arm of the Commonwealth Bank of Australia (‘the CBA’) known as Commonwealth Financial Planning (‘CFP’). He provided financial advice to consumer level clients about investments and insurance. He was paid a salary but was also eligible for bonus payments depending on his performance, which included the extent of fees and commissions generated by him.
  1. [16]
    Over a period of nearly two years, the respondent forged the signatures of 18 clients on 33 documents. The documents were relevant to ensuring compliance with the policies and requirements of CFP. The signatures of the clients on the various documents were required to evidence approval for certain action being taken or advice having been received from the respondent. In none of the 33 instances had the clients been shown the documents, nor had they been made aware of the contents of them throughout their dealings with the respondent.
  1. [17]
    By way of some examples of the type of documents in which the respondent forged the signature of the clients, they are these: pages 33 to 35 of the appeal record book details the particulars of each of the 33 occasions, and, importantly, on page 34 and 35, those pages explain the nature of the documents that were forged. By way of overview, it could be said that many of the documents are protective in nature in that they protect both the client and the bank. It is appropriate to consider a couple of examples of these.
  1. [18]
    Turning to the document descriptions commencing at page 34 of the appeal record book, the first one there is the client receipt. If one goes back one page in the appeal book to page 33, the client receipt is featured in six of the 33 particulars. It is clearly a document that is designed to be protective in nature, both to the bank and to the client. It talks about it being an acknowledgement that the client has been given a copy of the financial service guide pertaining to the relevant licensee and the details that such a document provides.
  1. [19]
    The second document referred to on page 33 of the appeal record book is a direct debit authority. While this may not be said to be a protective document, what it is, is authority for a person’s funds to be withdrawn from that person’s account. The respondent forged two signatures of clients on such a form. It is perhaps convenient at this stage to refer to document 7, because while it too could not be said to be a document protective in nature, it is a document transferring a super balance from an existing super fund to the Commonwealth Bank based super fund. The respondent forged another two signatures of clients on such forms.
  1. [20]
    Moving to another example of a type of form in which the respondent forged the signature of various clients, going back to page 34 of the appeal record book, the fourth document mentioned there is an application form. It allows and details the applicant investing in a whole series of managed funds through super. It includes information such as the advisor service fee and the commissions. If it was completed properly and in an unforged manner, the bank would be able to rely on it in a protective fashion if a client later on stated that they had not been fully informed of the commissions or service fee to be paid to the bank or to the advisor. The respondent forged two signatures of clients on two such separate forms.
  1. [21]
    It’s probably necessary to only give one further example, and the one that I will give is document 8 on page 34 of the appeal book. It details what commissions are payable to the licensee and any other party, the entrance and exit fees, commissions and administration fees. Again this document is protective in nature to the bank in the case of a client subsequently stating that they were not aware of the commissions that were payable. It also provides a level of protection to the client, because if the client is taken through the document they would know what commissions and fees are in fact payable.
  1. [22]
    The sentence proceeded on the basis that on each of the 33 occasions that the respondent forged the signatures of various clients, the clients had not been shown the documents, nor had they been made aware of the contents of the documents throughout their dealings with the respondent. So, this is not just a case of forging a name on a document having taken the client through the document at an earlier time.
  1. [23]
    On occasion, not only had the respondent forged the signature of a client, but he had also completed documentation inaccurately. Although the sentence proceeded on the basis that the inaccuracies were not deliberate, they were still inaccuracies which led to a false impression of the investment strategy, objectives and financial positions of some clients.
  1. [24]
    The agreed statement of facts refers to two such examples, one related to a client Susan Foster. In that case, it’s referred to at paragraphs 6 and 7 of the statement of facts. In that case, the document was a confidential fact finder and financial needs analysis. It contained numerous misstatements of the intentions of Mr and Mrs Foster. A few examples of those misstatements are these: the objective to protect assets on all family in the event of a death was endorsed as slightly important. However, it was one of the objectives that the Fosters felt most strongly about. At the meeting with the respondent, they had not discussed their income or financial details, but this section was endorsed as “not wish to discuss.” In the section relating to personal expenditure, $40,000 was written, however, this figure was never discussed and is inaccurate as to the true state of the Fosters’ affairs. It was Mrs Foster’s recollection that the respondent never discussed risk profiles with them. Had they been asked, they would have requested a no-risk investment. Despite that, the document endorsed a moderate risk portfolio. Their investment undertaken on the respondent’s advice had fallen by around $22,000. They immediately began to take steps to get their money out of that investment. Mrs Foster felt that they had been deceived into investing money in something that was not a safe alternative to cash or paying off business loans, and this is what they had asked to be advised on.
  1. [25]
    The other example in the agreed statements of facts where the respondent had completed documents inaccurately related to a client Esme Zahn. She received a letter in July 2008 about a one off advisor service fee and an ongoing service fee. Not only had she never been made aware of the one off service fee, the ongoing fee detailed in this letter was higher than what she had agreed to.
  1. [26]
    The respondent was sentenced on the basis that he was not using his position to directly steal from the clients. Rather, his dishonest intent was directed at his employer, the CBA. He was motivated by a combination of an intention to hide the fact that he had failed to comply with CFP compliance requirements and avoid disciplinary action, including dismissal, and a desire to artificially inflate or improve his statistics, and thereby enhance his reputation within the CFP and thereby his chances of securing advancement or bonus payments.
  1. [27]
    The sentence also proceeded on the basis that the CBA had compensated both Mrs Foster and Mrs Zahn, although the amount of that was not clear.

Remorse and co-operation

  1. [28]
    The respondent was first approached by his employer between July and October 2008 regarding his dishonest conduct. His employer had been alerted to it following a complaint by Mrs Zahn. Not only did he vehemently deny it but he also blamed it on Mrs Zahn, by saying that she was ‘grieving the death of her husband and was highly emotional and stressed, and that she did not know what was going on.’
  1. [29]
    The respondent was, again, confronted by his employer in October 2008 over further allegations in the files of other clients. He, again, strenuously denied any wrongdoing.
  1. [30]
    Seven of the 33 forgeries were committed after the respondent had been confronted by his employer.
  1. [31]
    Perhaps not surprisingly, the respondent’s files were subsequently audited. In late April 2009, the auditor discovered some issues with the signature on a document in the file of one of the clients. It was apparent that the particular document had only been produced in April 2009, but on the face of it, had been signed by the company director of the client some four months earlier, in December 2008. When the respondent was questioned about this, he provided a number of different answers. First, he denied any wrongdoing. Then he said he had the client come into the office and sign it in April 2009, even though it was dated in late December 2008. Then he said that he had noted that the back page had been missing from the file, so he had photocopied the client’s signature from another document. Then he said that he lost the last page, so he’d forged the signature. His next version was, that he had noticed certain pages had been ripped from the file and damaged by the opening and closing of cabinet doors. In a panic, and in fear of losing his position as an advisor, he said he had recreated the document to ensure the file would be compliant.
  1. [32]
    CBA security investigations manager, Christopher Brady, made arrangements to interview the respondent on the 1st of May 2009. In the course of that interview, the respondent was confronted with numerous impugned signatures from different client files. Once again, he denied wrongdoing in respect of all besides the signature on the back page of the client file that I’ve just referred to in some detail. He tendered his resignation around the 12th of May 2009. ASIC commenced their investigation on the 25th of November 2010.
  1. [33]
    Whilst it is true as has been submitted on behalf of the respondent that he was not interviewed for the next 12 months, in the interim, statements were obtained from four clients. Each client claimed that their signature had been forged on a number of documents held on the client files. One client also claimed that his wife’s signature had been forged. The ASIC investigation included two days of hearing on the 30th of May and the 16th of July 2012.
  1. [34]
    The ASIC decision was handed down on the 30th of October 2012, and it was from that time that the respondent has had a life ban from providing any financial services.
  1. [35]
    Subsequent to the ASIC investigation concluding, the respondent filed for a review of the ASIC decision. ASIC commissioned a handwriting expert to conduct a forensic investigation of the impugned signatures relevant to five clients. The expert completed his report on the 19th of March 2013. It was the expert’s opinion that each of the signatures were not written by the same person that provided the standard signatures. A subsequent expert report addressing further issues was provided to the respondent’s legal representatives on the 5th of July 2013. On the 11th of July 2013, ASIC received notice that the respondent had then withdrawn his application to have the decision reviewed.
  1. [36]
    ASIC then continued the investigation into the respondent’s client’s files. Another seven clients provided statements. Each witness was shown documentation on their client file, and identified instances where their signature or that of their partner was illegitimate.
  1. [37]
    In mid-2016, the Commonwealth DPP received a brief of evidence. Then on the 5th of September 2016, the respondent’s counsel sought an adjournment of two months to consider the brief. On the 17th of October 2016, the respondent applied for an adjournment to complete a submission. On the 5th of December 2016, at the request of the respondent, a stay application was listed for the 30th of January 2017. The stay application was heard by the Magistrate on the 30th of January and the Magistrate reserved the decision. On the 6th of February 2017, the Magistrate delivered the decision, refusing the respondent’s stay application. Then on the 20th of February 2017, the defendant entered a plea of not guilty and the matter was listed for a three day hearing. On the 15th of May 2017, the hearing was adjourned to allow the respondent an opportunity to seek specialist advice and for further negotiations to take place.
  1. [38]
    On the 8th of June 2017, a meeting was held between Crown and the respondent’s representative to facilitate negotiations. On the 9th of June 2017, the Crown emailed the respondent, rejecting their submissions in relation to the negotiations. Then on the 17th of July 2017, the respondent’s counsel advised the court that there was potential legal argument to be brought. A three day hearing was listed for the 6th of November 2017. On the 21st of September 2017, the respondent confirmed that there were no pre-trial applications. The respondent then entered what can be described as a late plea of guilty on the 24th of October 2017, some two weeks prior to the final trial listing. He was then sentenced on the 21st of December 2017.

Step towards rehabilitation

  1. [39]
    While the respondent entered a late plea of guilty, he nevertheless saved the Commonwealth DPP the resources of taking this matter for trial. There is also no suggestion that he has offended since April 2009.

Personal circumstances

  1. [40]
    Over the nearly two years of the offending, the respondent was between 29 and 31 years of age. He had no criminal history. He had a tertiary qualification in financial administration, and had worked in the industry from the age of 21 years.
  1. [41]
    Following receiving a life ban from ASIC in 2012, the respondent found it difficult obtaining employment, and his personal relationship of some 10 years broke down. Prior to the sentence hearing in December last year, he had recently commenced employment in a managerial role. Further details of this employment are not known. He has been the subject of media scrutiny.

Submissions on sentence

  1. [42]
    The sentence proceeded on the basis that there had been no financial detriment to any of the 18 clients. This was in the context, though, of the CBA having paid an undisclosed sum of compensation to two of the clients. Further, it was placed on the record on the part of the Crown that it was not being alleged that the respondent had set out to deliberately cause any sort of detriment to anyone. On behalf of the Crown, the following was submitted:
  • The delay in prosecuting the charge needed to be considered in the context that it was a relatively complex investigation, and that the respondent was aware of the nature of the allegations for a substantial period of time.
  • The plea of guilty, whilst it needed to be considered, and a discount needed to be applied, ought not to be treated as an early plea.
  • The overarching sentencing consideration is that of deterrence, because the potential for loss in committing offences such as these, and the damage done to the public perception of the financial services industry warrants such a consideration.
  • This was a serious example of the offence of the offence of forgery in that it occurred over nearly a two year period, and involved the breach of trust of the respondent’s employer, and his client’s in a significant way.
  1. [43]
    On behalf of the respondent, it was submitted that:
  • He has no criminal history, and has not committed further offences post the offending period, which concluded in April 2009. There were a number of references that spoke of the respondent’s otherwise good character.
  • In recent times, the respondent has found employment in a managerial sense and a conviction may very well have an impact, in circumstances where he has already been adversely impacted by the imposition of a life ban by ASIC in 2012.
  • There had been unfairness in the delay with this matter proceeding to sentence, where the delay lies solely at the feet of ASIC, and the prosecuting agency, and that this should be taken into account in mitigating the sentence. Further, had the respondent been sentenced earlier, say five years earlier for example, his conviction would have already been spent..
  • There has been extra-curial punishment imposed on the respondent by virtue of the life ban he received from ASIC and the media attention he was subjected to over a five or so year period. Submissions were also made as to the mental health impact, high blood pressure and the weight gain on the part of the respondent. I note that there was no expert evidence in relation to those issues.
  • One of the reasons a conviction ought not to be recorded, is the fact of the respondent’s commission of the forgery, and his associated life ban would be revealed by a Google search by any prospective future employer. The other reasons why a conviction should not be recorded are his lack of criminal history in the absence of any further offending since this offending. The recording of a conviction would essentially mean that the respondent would need to rebuild his life again in circumstances where he had previously applied for some 2000 jobs and had not been able to find short term employment for some 20 to 30 per cent of the last nine years. In other words, a conviction will adversely impact on the respondent’s economic and social wellbeing, whereby his employment has already been significantly curtailed by the lifetime ban and the other matters.
  • The appropriate penalty is a fine with no conviction recorded.

Comparable cases

  1. [44]
    At the sentence hearing, a number of comparable cases were referred to. These were a number of single judge decisions of this court. There was R v Thompson (8th of January 2010), R v Edwards (1st of May 2010), R v Niegel (8th of October 2012) and R v Goavocih, (17th of July 2015). It is difficult to discern within them, a guiding principle that recognises or reconciles the different circumstances, and the varying sentences.
  1. [45]
    As to the use of these cases as to the sentencing range, in R v Goodwin; ex parte Attorney-General (Qld)[6], Fraser JA relevantly observed at [5]:

“Comparable sentences assist in understanding how those factors should be treated, but they are not determinative of the outcome and they do not set a “range” of permissible sentences. There can be no underlying range of available sentences for a particular case, which may be narrowed or broadened over time by subsequent sentencing decisions.” 

  1. [46]
    In the Director of Public Prosecutions v OJA[7], Neville JA, with whom Ashley and Redlich JJA agreed, said at [30]-[31]:

“The need to have regard to current sentencing practices, does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for familiar offences hitherto imposed…”

Sentencing remarks

  1. [47]
    In sentencing the respondent, her Honour considered the following:
  • There is no suggestion that the respondent benefited financially, and that was not his intention. He was primarily motivated to cover up his failures to comply with the policies and procedures of the financial services industry. He was really cutting corners.
  • It was not a momentary lapse of judgement;
  • The respondent’s conduct had had the effect of circumventing an important process, which had been put in place by his employer to ensure clients understood the risks of investing.
  • The fact of the ASIC life ban had already been a significant penalty for the respondent. There had also been media attention and the respondent had experienced difficulties obtaining employment.
  • The respondent had not offended since 2009. He was relatively young at the time, being between 29 and 31 years of age.
  • Any delay in having the charges prosecuted was not attributable to the Commonwealth DPP.
  • A deterrent sentence was required.
  • The information provided for in the documents, which was completed by the respondent without the knowledge of the various clients, was only wrong in one particular case.

Manifest inadequacy

  1. [48]
    To succeed, the appellant must demonstrate that the sentence imposed was beyond the permissible range, not that it was too low or that a more severe punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no right penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range or is otherwise affected by an error of law.
  1. [49]
    Recently, in R v McConnell,[8] Fraser JA (with whom Sofronoff P and Philippides JA agreed), in the context of manifest excessiveness, identified (on an application for leave to appeal against sentence) at [15], that:

“The real issue is whether the sentence is manifestly excessive. That is not established unless the sentence is “unreasonable or plainly unjust” such as to justify the conclusion “that in some way there has been a failure to properly exercise the discretion which the law reposes in the Court of first instance”.

  1. [50]
    I am mindful of the limitation inherent in Crown appeals against sentences, the principle for which is enunciated in Everett v R.[9]
  1. [51]
    As the President of the Court of Appeal recently observed in R v RAZ; ex parte Attorney-General (Qld):[10]

“A principle that informs Crown appeals against sentence is that inadequate sentences are likely to undermine public confidence in the ability of the Courts to play their part in deterring the commission of crimes.”

  1. [52]
    The Commonwealth DPP submits there was an error in the exercise of the sentencing discretion, in that not recording a conviction does not adequately reflect the nature and the circumstances of the offending, where this is a serious example of the offence of forgery.
  1. [53]
    This submission ought to be accepted.
  1. [54]
    As the respondent’s counsel has rightly emphasised, there are number of mitigating features. In all other aspects of his life, it appears the respondent has been an exemplary citizen, a hard worker and, otherwise, a contributing member of the community. This has also taken a heavy toll on him personally and has no doubt caused him significant financial disadvantage. The respondent’s former career as a financial adviser has been destroyed by the ASIC life ban and the adverse media publicity associated with his offending conduct is a relevant factor.
  1. [55]
    It is accepted that the defendant did not personally profit by the offending. Nevertheless, he gained an indirect benefit in that it provided a means for him to avoid disciplinary proceedings and retain his employment. It also enabled him to artificially inflate statistics and, thereby, enhance his reputation within CFP and, thus, his chances of advancement or receiving bonus payments.
  1. [56]
    Delay is another feature relied on by the respondent as a mitigating factor. The chronology, which I have set out in some detail, reveals that there was more than an eight year delay between when the offending ceased and when the respondent was sentenced. The respondent points to the fact that there was a 12 month period between when the investigation commenced and when he was first requested to be interviewed. He had, of course, been interviewed by the CBA security investigations manager on the 1st of May 2009, at which time he was confronted with numerous impugned signatures from different client files. He denied wrongdoing in relation to all but one of them and, in relation to that one that he admitted, he had denied it when confronted on an earlier occasion. Further, the chronology reveals that, in the first 12 months of the ASIC investigation, statements were obtained from four of the 18 clients in relation to which the respondent was subsequently charged.
  1. [57]
    The respondent also point to a 1.75 year delay between when the brief was received by the Commonwealth DPP and when the respondent was formally charged. During that time, statements were obtained from a former CBA auditor in the professional standards area, a former executive leader at CBA, a current CBA general manager strategic support, wealth management strategic development and current CBA executive manager. I note that in R v Wall,[11]Wood CJ said at [89]:

“Delay in the prosecution of white collar crimes is not unusual and the fact that they are so difficult to discover and successfully prosecute is one of the reasons why general deterrence is so important.”

  1. [58]
    In R v L; ex parte Attorney-General (Qld),[12]it was held that the lapse of time between the commission of the offence and the imposition of sentence should ordinarily not be a mitigating factor in a sentence, unless that delay has resulted in some unfairness to the offender. Two examples of that unfairness were given. The first is where the delay has the consequence that the offender’s liberty may be curtailed, his reputation called into question or he is left in a state of uncertainty caused by a failure to prosecute his case more quickly. The second is where “the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress.”
  1. [59]
    It was contended for on behalf of the respondent that the significant delay had meant that the respondent had this matter hanging over his head for a lengthy period of time, and that, had he been sentenced, say, five years earlier, his conviction would so be spent.
  1. [60]
    While the length of the delay is a relevant feature here and cannot be overlooked, it needs to be considered in the context that at least part of the delay was caused by the respondent pursuing avenues, albeit lawful avenues. Examples of this are these. The ASIC decision was handed down on the 30th of October 2012. The respondent then filed for a review of the decision. This necessitated ASIC engaging a handwriting expert. Following the disclosure of expert reports from the handwriting export, the respondent withdrew his application to have the decision reviewed. The criminal charge was laid on the 6th of April 2016. The full brief was disclosed to the respondent’s counsel. A two month adjournment was sought by the respondent on the 5th of September 2016 and a further adjournment again was sought by the respondent on the 17th of October 2016. The respondent then made an application for a stay in October 2016. The decision in relation to that was given in February 2017, refusing the respondent’s application. I have then set out the remainder of that chronology earlier and I will not go through that further, but these are a few examples of the respondent having contributed to the delay. This, of course, he was entitled to do, but he cannot then claim a benefit from it. So I do take into account the delay but discount, to some extent, its impact as a mitigating feature, in circumstances where some of it has been the product of the respondent.
  1. [61]
    The other aspect of the delay, relied on by the respondent was that there had now been a period of more than eight years since the end of the offending period, during which there had been no further offending, and this speaks very positively of his rehabilitation. This may be right, but the respondent was a university educated responsible member of the community prior to this offending. It would not have been in his interests to continue to offend once his employer’s internal investigator and ASIC progressively uncovered the extent of his dishonesty. In R v Moxon,[13]the then President of the Court of Appeal made the following observations that are apt here, and this can be found at [37]:

“His prospects of rehabilitation were therefore always excellent, irrespective of the delay. Rehabilitation during the period of the delay was not as powerful a feature as, for example, for a reformed drug addict or a youthful property offender.”

  1. [62]
    Therefore, while I do place some weight on the issue of delay, it is not as great as it may be in other cases for the reasons that I have just outlined.
  1. [63]
    Balanced against all of the mitigating features, including the respondent’s character, as provided for in s 12(2)(b) of the PSA, and the other features that I have referred to, is the nature of the offence. It was committed in circumstances where the respondent did not have extreme youth on his side. He was between 29 and 31 years of age for the period of the offending. The offence of forgery carries a maximum term of three years imprisonment. It is a serious example of this offence. The simple fact is that it is an offence of dishonesty in a position of trust. The crux of the offending was that the respondent had committed criminal acts potentially sacrificing the interests of his clients and his employer for his own convenience and motives. It was protracted and persistent in the context that it involved multiple clients. There is nothing to suggest that he would have stopped his dishonest practices but for the complaints of some of the clients and the subsequent internal investigation undertaken by the bank. Indeed, as I have already pointed out, when the respondent’s conduct first came to light, he not only vehemently denied it, but he blamed the client for it. He then persisted in his forging documents after that time, and when confronted for a second time in October 2008, he again strenuously denied any wrongdoing and he continued to offend. Then, when the audit of the files was conducted in April 2009, he, again was not honest and provided false versions, then, yet again, when interviewed on the 1st of May 2009, he denied wrongdoing in respect of all of them, beside the signature on one of the documents.
  1. [64]
    The financial services industry relies heavily upon the honesty of advisors. The appearance of a client’s signature on a document signifies that the client has seen, read and agreed with the contents of the documents. The forging of the signatures, while they did not result in any actual loss to any of the clients, carried the risk that those documents would be used to the detriment of those clients. They had the potential to lead to serious consequences for the clients, including the legal remedies available to clients if the advice was not in their best interests. The respondent’s actions had the potential to damage the reputation of the financial services industry. His dishonesty had a discernible effect on the trust which must exist between citizens if society is to function and its members are to do business together.
  1. [65]
    General deterrence is so obvious as to need little discussion. The respondent’s dishonest conduct warrants a stern penalty, so that those involved in the financial services industry fully comprehend the importance of complying with policies and procedures designed to protect both the bank and its clients. A strong message needs to be sent to those who engage in similar conduct that they will be apprehended, and they will be punished to the full extent of the law.
  1. [66]
    I am cognisant of the fact that the nature of the offence, being dishonesty as an employee in a position of trust, would be likely to concern future employers and may reduce the chances of the respondent finding employment, at least in the next five years. However, to be weighed against that is the public interest in sustained dishonesty being known publically, particularly to future prospective employers, who have a right to know about an offence of the present character.
  1. [67]
    It remains to consider the impact of a conviction on the respondent’s economic and social wellbeing. Little, if any, further harm can now be done to the respondent’s wellbeing in these regards than has already been occasioned by the ASIC life ban with respect to working in the financial services industry, and also the media scrutiny the respondent has already been subjected to.
  1. [68]
    In my respectful opinion, the learned Magistrate’s sentencing remarks show that the scale and the seriousness of the offending were not given the weight that they deserved so as to support a conclusion that there was a misapplication of the proper sentencing principles. The sentence is so out of range as to warrant intervention.
  1. [69]
    After considering the relevant factors, and particularly those referred to in s 12(2) of the PSA, it seems to me that the community interest in having the conviction recorded prevails over the individual interests of the respondent from recording it. It follows that the ground of appeal has been made out.
  1. [70]
    For these reasons, I would allow the appeal, set aside the non-recording of a conviction and order the conviction be recorded. I would not interfere with the $3000 fine.

Specific error

  1. [71]
    I should also say that it was submitted in oral submissions by counsel for the appellant that the learned Magistrate erred in concluding that only one of the documents in relation to one of the clients contained incorrect facts. This ground is made out. The agreed statement of facts does not limit the inclusion of incorrect facts to one document. This is readily apparent from paragraphs 5, 6 and 9 of the agreed statement of facts. In short, the document titled ‘Confidential Fact Finder and Financial Needs Analysis’ in relation to Mrs Forster contained a number of incorrect facts. Further, a letter forwarded to Esme Zahn in July 2008, also contained an incorrect fact as to the ongoing service fee that had previously been agreed to between the respondent and Ms Zahn.
  1. [72]
    However, given my findings as to manifest inadequacy, there is no need to decide to what extent, if any, this specific error has infected the sentencing process.
  1. [73]
    So the orders are as follows:
  • The appeal is allowed.
  • The sentence imposed, to the extent that no conviction is recorded, is set aside.
  • A conviction is recorded.

Footnotes

[1] (1936) 55 CLR 499.

[2] [2007] QCA 224 at [6].

[3] (2010) 242 CLR 50 at [59].

[4] [1998] 1 Qd R 487.

[5] [2007] QCA 165 at [12].

[6] [2014] QCA 345.

[7] [2007] 172 A Crim R 181.

[8] [2018] QCA 107.

[9] (1994) 181 CLR 295 at 300, 306 and 307.

[10] [2018] QCA 178 at [29].

[11] [2002] NSWCCA 42.

[12] [1996] 2 Qd R 63, at 66 to 67.

[13] [2015] QCA 65.

Close

Editorial Notes

  • Published Case Name:

    Australian Securities and Investments Commission v Gillespie

  • Shortened Case Name:

    Australian Securities and Investments Commission v Gillespie

  • MNC:

    [2018] QDC 199

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    19 Sep 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Dinsdale v The Queen (2000) 202 CLR 321
3 citations
Jump To
Cite 1 - (2000) 202 CLR 321
Cite 2 - (2000) 202 CLR 321
Cite 3 - (2000) 202 CLR 321
Director of Public Prosecutions v OJA [2007] 172 A Crim R 181
2 citations
Jump To
Cite 1 - [2007] 172 A Crim R 181
Cite 2 - [2007] 172 A Crim R 181
Everett v The Queen (1994) 181 CLR 295
1 citation
Jump To
Cite 1 - (1994) 181 CLR 295
Hili v R [2010] 242 CLR 50
2 citations
Jump To
Cite 1 - [2010] 242 CLR 50
Cite 2 - [2010] 242 CLR 50
House v The King (1936) 55 CLR 499
4 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
Cite 4 - (1936) 55 CLR 499
R v Briese; Ex parte Attorney-General[1998] 1 Qd R 487; [1997] QCA 10
2 citations
Jump To
Cite 1 - [1998] 1 Qd R 487
Cite 2 - [1998] 1 Qd R 487
R v Brown; ex parte Attorney-General [1994] 2 Qd R 182
2 citations
Jump To
Cite 1 - [1994] 2 Qd R 182
Cite 2 - [1994] 2 Qd R 182
R v Goodwin; ex parte Attorney-General [2014] QCA 345
2 citations
Jump To
Cite 1 - [2014] QCA 345
Cite 2 - [2014] QCA 345
R v Ikin [2007] QCA 224
2 citations
Jump To
Cite 1 - [2007] QCA 224
Cite 2 - [2007] QCA 224
R v Law; ex parte Attorney-General [1996] 2 Qd R 63
2 citations
Jump To
Cite 1 - [1996] 2 Qd R 63
Cite 2 - [1996] 2 Qd R 63
R v McConnell [2018] QCA 107
2 citations
Jump To
Cite 1 - [2018] QCA 107
Cite 2 - [2018] QCA 107
R v Moxon [2015] QCA 65
2 citations
Jump To
Cite 1 - [2015] QCA 65
Cite 2 - [2015] QCA 65
R v RAZ; ex parte Attorney-General [2018] QCA 178
2 citations
Jump To
Cite 1 - [2018] QCA 178
Cite 2 - [2018] QCA 178
R v Sanders [2007] QCA 165
2 citations
Jump To
Cite 1 - [2007] QCA 165
Cite 2 - [2007] QCA 165
R v Wall [2002] NSWCCA 42
2 citations
Jump To
Cite 1 - [2002] NSWCCA 42
Cite 2 - [2002] NSWCCA 42
Wong v The Queen (2001) 207 CLR 584
2 citations
Jump To
Cite 1 - (2001) 207 CLR 584
Cite 2 - (2001) 207 CLR 584

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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