Regina (Commonwealth) v Dominic FODERA [2007] NSWSC 1242

Regina (Commonwealth) v Dominic FODERA [2007] NSWSC 1242

The offender, Dominic Fodera, was found beyond reasonable doubt to have dishonestly withheld material information from the HIH Board and advisers by not disclosing the connection between the Total Return Swap/collateral deposit and the underwriter's (SG) allocation, thus misleading potential investors in the prospectus. Having regard to the seriousness of the breach of trust, the need for general deterrence, the objective gravity of the conduct, and the mitigating factors, only a term of imprisonment was appropriate.

Parties
Prosecutor: Regina (Commonwealth Director of Public Prosecutions); Offender: Dominic Fodera
Jurisdiction
Australia
Judgment Date
07 June 2007
Procedural Posture
Criminal / Sentencing
Outcome
imprisonment with recognisance release order
Legal Topics
Prospectus Offence, Material Omission, Dishonesty, General Deterrence, Sentencing of Federal Offenders
Criminal Law Corporations Law Prospectus Offence Material Omission Dishonesty General Deterrence Sentencing of Federal Offenders

Case Brief

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Parties

Regina (Commonwealth Director of Public Prosecutions)

Prosecutor

Dominic Fodera

Offender

Procedural Posture

Criminal / Sentencing

Legal Issues

  1. 1 Whether the offender deliberately and dishonestly withheld material information from the HIH Board and Due Diligence Committee concerning the Total Return Swap and collateral deposit in the HIH Holdings (NZ) Ltd converting notes prospectus
  2. 2 Assessment of the objective gravity of the offence under s 996(1)(b)(ii) of the Corporations Law
  3. 3 The application of general deterrence to white collar crime sentencing

Ratio Decidendi

The offender, Dominic Fodera, was found beyond reasonable doubt to have dishonestly withheld material information from the HIH Board and advisers by not disclosing the connection between the Total Return Swap/collateral deposit and the underwriter's (SG) allocation, thus misleading potential investors in the prospectus. Having regard to the seriousness of the breach of trust, the need for general deterrence, the objective gravity of the conduct, and the mitigating factors, only a term of imprisonment was appropriate.

Court Disposition

imprisonment with recognisance release order

Orders

  • Sentenced to imprisonment for three years from 10 May 2007 to 9 May 2010
  • Ordered release on 9 May 2009 upon giving security in the sum of $10,000 without surety by way of recognisance to be of good behaviour until 9 May 2010