Regina v Fysh (No 4) [2012] NSWSC 1587

Regina v Fysh (No 4) [2012] NSWSC 1587

The offender's acquisition of QGC shares while knowingly in possession of inside information was serious offending because he was a very senior employee, obtained the information through his employment, acted in breach of trust for personal financial benefit, invested a substantial amount, and undermined market integrity. Although he had strong mitigating factors including exceptional cooperation, prior good character, low risk of reoffending, health and family impacts, delay, extra-curial punishment and cooperation in the pecuniary penalty proceedings, those matters did not reduce the objective seriousness to the lower end or make a non-custodial alternative appropriate. Full-time...

Jurisdiction
Australia
Judgment Date
19 December 2012
Procedural Posture
Criminal Sentencing for Insider Trading / Proceedings on Sentence After Jury Verdict of Guilty on Counts 3 and 4 and Not Guilty on Counts 1 and 2
Outcome
Offender sentenced to full-time imprisonment on counts 3 and 4, with sentences to be served concurrently and release after 12 months on recognisance.
Legal Topics
['insider Trading' 'federal Sentencing' 'market Integrity' 'general Deterrence' 'pecuniary Penalty Order' 'custodial Sentence']
['criminal Law' 'corporations Law' 'sentencing'] ['insider Trading' 'federal Sentencing' 'market Integrity' 'general Deterrence' 'pecuniary Penalty Order' 'custodial Sentence']

Case Brief

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Procedural Posture

Criminal Sentencing for Insider Trading / Proceedings on Sentence After Jury Verdict of Guilty on Counts 3 and 4 and Not Guilty on Counts 1 and 2

Legal Issues

  1. 1 ['What sentence should be imposed for two counts of insider trading under s 1043A(1)(c) and s 1311(1)(a) of the Corporations Act 2001 (Cth).' 'Whether the seriousness of the offending required full-time imprisonment rather than a custodial alternative such as home detention or an intensive correction order.' 'Whether the offender knew the information had the qualities required for it to be inside information.' 'What mitigating weight should be given to cooperation, contrition, prior good character, hardship to family, delay, extra-curial punishment and the pecuniary penalty proceedings.']

Ratio Decidendi

The offender's acquisition of QGC shares while knowingly in possession of inside information was serious offending because he was a very senior employee, obtained the information through his employment, acted in breach of trust for personal financial benefit, invested a substantial amount, and undermined market integrity. Although he had strong mitigating factors including exceptional cooperation, prior good character, low risk of reoffending, health and family impacts, delay, extra-curial punishment and cooperation in the pecuniary penalty proceedings, those matters did not reduce the objective seriousness to the lower end or make a non-custodial alternative appropriate. Full-time...

Court Disposition

Offender sentenced to full-time imprisonment on counts 3 and 4, with sentences to be served concurrently and release after 12 months on recognisance.

Orders

  • ['For count 3, acquiring 240,000 shares in QGC on 2 December 2007 while in possession of inside information, Stuart Alfred Fysh was sentenced to imprisonment for 2 years commencing on 11 December 2012 and expiring on 10 December 2014.' 'For count 3, the offender was directed to be released on 10 December 2013 at the...