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Supreme Court 23 June 2006

Regina v Cooper

[2006] NSWSC 609

Fraud & dishonesty
CRIMINAL LAW SENTENCING BRIBERY FALSE STATEMENTS CRIMES ACT S178 BB S249B (2)(B)

Citation: Regina v Cooper [2006] NSWSC 609
Court: Supreme Court of New South Wales
Date: 23 June 2006
Judge(s): James J

Background

The prisoner was the Chief Executive Officer of FAI Home Security Pty Limited and Home Security International Incorporated, companies with business ties to HIH Insurance Limited through FAI Insurances' earlier takeover by HIH. The prisoner was not a director, officer, or employee of HIH or any HIH group company, but his associated companies had significant dealings with HIH as it moved toward separating those relationships in late 2000 and early 2001.

A jury found the prisoner guilty on all 13 counts in the indictment following a trial before James J. The charges arose from conduct involving William Howard, an agent of HIH Casualty & General Insurance Limited, who had become financially vulnerable as HIH moved toward insolvency. A provisional liquidator was appointed to HIH in March 2001.

The 13 counts fell into two categories: six bribery offences and seven false statement offences. The Crown alleged the prisoner offered and then paid cash to Mr Howard to influence how Mr Howard processed insurance claims by companies associated with the prisoner, and separately that the prisoner published false statements to HIH with intent to obtain financial advantages for those same companies.

  • What sentences were appropriate for six offences of corruptly offering or giving a benefit to an agent under s 249B(2)(b) of the Crimes Act, carrying a maximum of seven years imprisonment each?
  • What sentences were appropriate for seven offences of publishing a materially false statement with intent to obtain a financial advantage under s 178BB of the Crimes Act, carrying a maximum of five years imprisonment each?
  • How should the sentences be structured and accumulated, having regard to the totality principle and the requirements of s 44 of the Crimes (Sentencing Procedure) Act?
  • Whether special circumstances existed to justify departing from the standard ratio between non-parole periods and head sentences.

Decision

James J sentenced the prisoner having found that the objective gravity of the offences and the need for general deterrence were significant factors. His Honour rejected any suggestion that white-collar crimes warranted a substantial gap between head sentences and non-parole periods, emphasising that the time actually served in custody must reflect the seriousness of what was done.

Despite that view, James J found special circumstances within s 44 of the Crimes (Sentencing Procedure) Act, grounded in the prisoner's previously good character and his having never been imprisoned before. The effect of that finding was to make the total of fixed terms and non-parole periods less than three-quarters of the total sentence terms.

Because all offences were committed before 1 February 2003, his Honour applied the previous version of s 44 of the Crimes (Sentencing Procedure) Act. The false statement offences were ordered to be served first, with the bribery offences following. Several sentences were expressed as fixed terms, rather than head sentences with separate non-parole periods, because any parole component would have been absorbed into another sentence being served concurrently.

The accumulation of sentences produced a total effective sentence with an earliest parole eligibility date of 30 October 2010, with the prisoner having entered custody on 31 October 2005 upon the jury's verdicts.

Orders Made

  • Counts 7 to 10 (false statements): fixed term of 2 years and 6 months each, commencing 31 October 2005, expiring 30 April 2008, served concurrently
  • Counts 11 and 12 (false statements): fixed term of 2 years each, commencing 31 October 2006, expiring 30 October 2008, served concurrently
  • Count 13 (false statement): fixed term of 1 year and 6 months, commencing 31 October 2007, expiring 30 April 2009
  • Counts 1 to 6 (bribery): 5-year term comprising a non-parole period of 2 years commencing 31 October 2008 (expiring 30 October 2010) and a parole period of 3 years expiring 30 October 2013, served concurrently with each other
  • Earliest parole eligibility date: 30 October 2010

Key Takeaways

  • Under s 249B(2)(b) of the Crimes Act, corruptly offering or paying cash to an insurance company's agent to influence the processing of claims carries a maximum of seven years imprisonment; the Supreme Court imposed five-year terms for each of six such counts.
  • The sentencing court declined to treat the white-collar nature of the offences as a basis for reducing the custodial component, holding that the time in prison must reflect the objective gravity of the conduct and the need for general deterrence.
  • Special circumstances within s 44 of the Crimes (Sentencing Procedure) Act can be established through a combination of prior good character and no previous imprisonment, allowing the total non-parole component to fall below three-quarters of the total sentence.
  • Where all offences predate 1 February 2003, the former version of s 44 of the Crimes (Sentencing Procedure) Act governs the sentencing structure.
  • Fixed terms, rather than sentences with separate parole periods, are appropriate where any parole period would be entirely absorbed into a concurrent non-parole period or fixed term being served simultaneously.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BB and 249B(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act 1986 (NSW)
- Corporations Act 2001 (Cth)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Pearce v The Queen (1998) 194 CLR 610