AT MELBOURNI CRIMINAL DIVISION {UPREME COURT OF VICTORIA THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v CHRISTOPHER RUSSELL HILL and LUKAS JAMES KAMAY (UDGE: WHERE HELD: HEARING: DAT DAT CASE MAY BE. ED AS: ‘MEDIUM NEUTRAL CITATION: HOLLINGWORTH J Melbourne 10 and 11 December 2014 17 March 2015 CDPP v Hill and Kamay [2015] VSC 86 Not Restricted SCR 2014 0147, 0148 CRIMINAL LAW - Sentencing ~ Insider trading - Abuse of public office — Dealing in identification information using carriage service - Dealing in proceeds of crime A$100,000 or more ~ Very serious instances of some offences ~ Guilty pleas — General deterrence and denunciation APPEARANCES: For the Crown For the Accused Hill For the Accused Kamay SCEH Counsel Mr R Bromwich $C Mr A Sharp Mr 1 Hill QC Mr P Morrissey SC Solicitors Commonwealth Director of Public Prosecutions Adams Maguire ier Lawyers Anthony Isaacs Criminal Lawyers SENTENCE, CDPP v Hill and KamayHER HONOUR: Introduction 1 Christopher Russell Hill, you have pleaded guilty to four charges of abuse of public office, one charge of insider trading, and one charge of identity theft. 2 Lukas James Kamay, you have pleaded guilty to four charges of insider trading, one charge of money laundering, and two charges of identity theft. Alll of these offences occurred between August 2013 and May 2014, in connection with an agreement between you that Mr Hill would provide to Mr Kamay sensitive and unpublished Australian Bureau of Statistics main economic indicators information, obtained in his capacity as a Commonwealth public official, and Mr Kamay would use that inside information to conduct trades of margin FX contracts on the foreign exchange derivatives market, 4 A margin FX contract is a financial product that is a derivative. Its value is derived from the value of an underlying currency exchange rate, In effect, such a contract allows a trader to speculate on future price movements in an underlying currency pair (for example, the Australian dollar versus the US dollar), without actually acquiring the underlying currency. 5 Margin FX contracts are contracts to buy or sell to another contracting party. They are not traded on an open market or through a central exchange. 6 This type of trading is leveraged, which means that a trader is only required to pay a fraction of the value of the underlying currency by way of deposit (the margin), to obtain the full benefit or detriment of changes in the price of the underlying currency. The amount required to be provided for each contract is determined by the margin FX contract provider, depending on a trader’s risk profile. 7 — The fact that the trading is leveraged also means that a trader can make correspondingly larger profits or losses from relatively small changes in the value of the underlying currency. SCEH 2 SENTENCE CPP v Hill and Kamay10 i 2 SC-EH ‘Main economic indicators (“MEIs”) are released on a monthly or quarterly basis by the ABS, and are important statistics that inform government, business and the community about the state of the Australian economy and labour market. Due to the market sensitive nature of MEIs, they are treated as highly confidential and kept under strict embargo until official release at 11.30 am on their scheduled release date. The announcement of such data has an impact on the value of the Australian dollar against other currencies. , The relevant events You met in 2007, while studying economics and commerce at Monash University. You both graduated in 2011. You, Mr Kamay, began a graduate role with JB Were, but were made redundant around September 2011, You then obtained employment with the National Australia Bank, working on its wholesale foreign exchange sales desk in Melbourne. You started there as an analyst, and were promoted within a couple of years to the position of associate director. You, Mr Hill, obtairied employment with the ABS, as an analyst in its time series analysis section in Canberra, Your primary responsibility involved the analysis of ted from time to time data for the monthly labour force figures, however, you a: with analysis of building approvals data. You also had access to all data for retail trade and private new capital expenditure (“CAPEX”), although your position only required you to access that data once per year. You were able to access all of this information using ABS's computer system. These types of data formed part of the MEI information, which was kept in strict confidence until its release. Upon joining the ABS, you, Mr Hill, became a Commonwealth public official. You signed a number of employment documents, including a confidentiality undertaking, which reinforced your obligations as an employee in a position of public trust with access to highly confidential and sensitive material. 3 SENTENCE, CDPP y Hill and Kamay13 14 15 16 SC:EH After leaving university, the two of you continued to share a number of mutual friends, In late May 2013, you both attended the same birthday party in Rye. This was the first occasion on which you discussed Mr Hill's ability to access MEI information though his employment at the ABS. Over the next few months, you had a number of discussion about the possibility of using embargoed MEI information to trade in margin FX contracts. Given your work experience, you, Mr Kamay, were the person who best appreciated the likely value of having access to that information before its official release; you were the person who first floated the idea of engaging in insider trading. You, Mr Hill, could easily have rejected the proposal out of hand, but you did not do so; you embraced it willingly. ‘The essence of the agreement you reached was as follows: (a) Mr Hill would obtain and provide MEI information to Mr Kamay, prior to it being announced and released to the public; (b) Mr Kamay would either buy or sell margin FX contracts, using that MEI information; (©) Some trades would deliberately result in a loss, to give the appearance of a normal trading pattern; (a) The trading would continue for a period of about 12 months, with the aim of achieving a balance of $200,000, from which you would each receive around $50,000 after Mr Kamay had paid the appropriate tax; and (©) Further communication would either be in person, or via phone services falsely created using personal identification details of other people. By early August 2013, it had been agreed that Mr Kamay would open, fund and operate an account in his name with a foreign exchange trader, in order to practise trading in margin FX contracts while in possession of MEI information provided by 4 SENTENCE CDPP v Hill and Kamay7 18 19 20 SC-EH Mr Hill. On 9 August 2013, Mr Kamay opened an account (No 97058) with Pepperstone, a foreign exchange contract provider (“the first Pepperstone account’). During August, Mr Kamay completed a number of practice trades of margin FX contracts. Over a period of almost nine months, Mr Hill provided embargoed MEI information to Mr Kamay, using the following pattern. You, Mr Hill, would access the data within the ABS computer system, record the data in handwritten notes, and remove it from the ABS. You would then pass the information on to Mr Kamay by telephone. Initially, you both used your own mobile phones and SIM cards for this purpose. Later, you started using SIM cards and phones that you acquired and registered in other people's names. Between 12 September 2013 and 8 May 2014, there were a total of 21 margin FX contract trades conducted through the first Pepperstone account, using MEI information provide by Mr Hill. Sixteen of those trades resulted in a total profit of almost $284,000, and five resulted in deliberate losses totalling around $89,000. Those trades resulted in a net profit of around $195,000, an amount within the scope of your agreement, Mr Kamay, on 2 September 2013, unbeknown to Mr Hill, you opened a second trading account with Pepperstone (No 98063). Between 12 September 2013 and 27 February 2014, you conducted a total of 13 margin FX contract trades through the second Pepperstone account, using MEI information provided by Mr Hill, Twelve of those trades resulted in a total profit of just over $970,000, and one trade resulted ina deliberate loss of almost $14,000; the net profit was more than $956,000. In January and February 2014, also unbeknown to Mr Hill, you opened two further trading accounts, this time with a foreign exchange contract provider called AxiCorp. In entering into all of the relevant trades on the AxiCorp accounts, you again used MEI information provided by Mr Hill. 5 SENTENCE, CDPP v Hill and Kamay21 22 23 24 25 26 7 Between 3 and 13 February 2014, you conducted three margin FX contract trades using the first AxiCorp account (No 428100). All of those trades resulted in a profit totalling around $601,000. You made no losses on the first AxiCorp account. Between 27 February and 8 May 2014, you conducted eight margin FX contract trades using the second AxiCorp account (No 428863). Six of those trades resulted in a total profit of almost $6,188,000, and two resulted in deliberate losses totalling almost $816,000; the net profit on the second AxiCorp account was just over $5,372,000. Of those eight trades, three of them were so large that they resulted in a profit of more than $1 million each. In summary, using the MEI information provided by Mr Hill, you, Mr Kamay, made a gross profit of more than $8 million and a net profit of more than $7 million, Less than $200,000 of that net profit was obtained in accordance with your agreement with Mr Hill, You conducted the rest of the trades solely for your personal benefit. Mr Hill was unaware of any of the trading carried out using the second Pepperstone account or the two AxiCorp accounts. Mr Hill had no idea that you, Mr Kamay, had gone far beyond the $200,000 limit to which you had agreed. In fact, the total amount which you, Mr Hill, received from these trading activities was less than $20,000. Mr Kamay gave you $13,000 cash in December 2013, and a further $6,500 cash in April 2014. Mr Kamay, you retained the balance of the profits in a mixture of bank and trading accounts. By early March 2014, you, Mr Kamay, had become interested in buying one of the units in Albert Park that was being renovated on the TV series The Block. On 14 March 2014, you withdrew $5 million from the second AxiCorp account and transferred it to one of your NAB bank accounts, in preparation for the anticipated purchase, 6 SENTENCE CDPP v Hill and Kamay29 31 32 SCEH On 8 April 2014, after successfully bidding through your agent for one of the units, you, Mr Kamay, entered into a contract to purchase the unit for $2,375,000. The purchaser was named as you and/or nominee. You subsequently took steps to have a company and trust called “Lukam” set up to be the purchaser. On 9 April 2014, you arranged for a personal cheque in the sum of $237,500 to be drawn against your NAB bank account, and paid to the vendor's representatives by way of deposit. You were arrested before you could complete the purchase. The relevant authorities started becoming concerned about possible illegal activity in February 2014. On 19 February 2014, the Australian Securities and Investments Commission received a report from Pepperstone about suspected insider trading by Mr Kamay. On 20 February 2014, ASIC received a similar report from AxiCorp. ASIC immediately referred the matter to the Australian Federal Police. The next day, the AFP and ASIC began a joint investigation. On 9 May 2014, police executed search warrants at your homes, where a number of items were seized. You were both arrested later that day. Your criminal activities only ceased with your arrests. The charges Abuse of public office Mr Hil, you have pleaded guilty to four charges of abuse of public office!: (a) Charge 1 relates to labour force data that you provided on nine occasions between 1 August 2013 and 9 May 2014; (b) Charge 2 relates to retail trade data that you provided on eight occasions between those same dates; (©) Charge 4 relates to building approval data that you provided on six occasions between 24 September 2013 and 5 May 2014; and Section 142.2(1) of the Criminal Code (Cth). 7 SENTENCE CDPP v Hill and Kamay35 36 37 39 SC:EH (a) Charge 5 relates to CAPEX data that you provided on one occasion between 20 and 25 February 2014. The essence of each of those offences is that you used information that you had obtained in your capacity as a Commonwealth public official, with the intention of dishonestly obtaining a benefit for yourself and Mr Kamay. ‘The maximum penalty for each of these four charges is imprisonment for 5 years and/or a pecuniary penalty of $51,000. There have been very few instances of prosecution for this offence, and there is therefore no established sentencing range? These are very serious examples of this offence, for the following reasons. Charges 1, 2 and 4 are rolled-up charges, meaning that they each involved more than one episode of criminal conduct during the relevant period. This means that the criminality involved is greater than with a charge involving only one episode of criminal conduct. ‘On 24 separate occasions, over a period of more than eight months, you deliberately accessed the ABS database, copied by hand what you knew to be highly confidential embargoed information, and provided it to Mr Kamay for him to use in FX contract trading. You did so in clear breach of the trust placed in you by the ABS, and contrary to the express provisions of your employment contract and confidentiality undertaking. Your sole motivation for committing these offences was personal financial gain. There is no suggestion of any altruistic, philanthropic or greater public good motivating the breach of trust, which might otherwise mitigate in some way the seriousness of your offending. ‘As acknowledged by the Court of Appeal of the Supreme Court of Western Australia in the recent decision of R v Combo [2015] WASCA 34 8 SENTENCE CDPP v Hill and Kamay40 41 42 SC:EH The ABS has provided a victim impact statement, which sets out in some detail the effect your actions have had on the ABS and its staff, Confidentiality of the information provided to, and held by, the ABS is critical to its proper functioning. Conduct such as yours can be very damaging to an agency like the ABS, particularly to its public reputation. Your actions have caused the ABS to spend considerable time and money reviewing the integrity of its computer systems, and undertaking further staff training. The ABS also arranged counselling for those members of staff who were having trouble dealing with the nature and seriousness of your betrayal of trust. Te was necessary for the DPP to group your conduct in some way, for the purpose of rolling up the charges, He chose to do so by dividing them up according to the different types of MEI information that you provided to Mr Kamay. Although understandable, the division of these four charges in this way is, to some extent, artificial. It is true, as the DPP points out, that some types of MEI information crossed your desk as part of your day to day work, whereas other types had to be specifically sought out by you on the ABS computer system. But, in either case, the decision to copy particular information and provide it to Mr Kamay was a deliberate one, made pursuant to your prior agreement; I would not describe any of the offences as less serious, on the basis that they were simply opportunistic. I am also not in a position to distinguish between these four charges on some other basis (for example, there is no evidence as to whether some types of MEI information were more valuable, or more market sensitive, than others). In these circumstances, I propose to impose the same sentence for each of the four abuse of public office offences, and order total concurrence between them. That sentence will reflect the totality of the criminality involved in these four charges. Insider trading You have both pleaded guilty to charge 6, which is a joint charge of insider trading.? Sections 1043 and 1311(1) ofthe Corporations Act 2001 (Cth). 9 SENTENCE CDPP v Hill and Kamay44 47 SC:EH This relates to the 21 occasions, between 12 September 2013 and 8 May 2014, when. trades were conducted using the first Pepperstone account. Mr Kamay, you have pleaded guilty to a further three charges of insider trading. These relate to the margin FX contract trades that you made without Mr Hill’s knowledge, using the three accounts of which he was unaware. In each case, you used various types of ABS main economic data: (a) Charge 8 relates to the 13 trades made between 12 September 2013 and 27 February 2014, using the second Pepperstone account; (b) Charge 9 relates to the three trades made between 3 and 13 February 2014, using the first AxiCorp account; and (©) Charge 10 relates to the eight trades made between 27 February and 8 May 2014, using the second AxiCorp account. You both knew that the MEI information which Mr Hill provided to Mr Kamay was not generally available, and that, if it were generally available, a reasonable person would expect it to have a material effect on the price or value of the margin FX contracts that Mr Kamay entered into, An insider trader uses inside information to gain an unfair advantage over other traders in the market; it is a form of cheating or fraud. Insider trading is a serious criminal offence, because it can undermine the integrity of markets, and diminish public confidence in the commercial world. The fact that margin FX contracts are an off-market derivative does not diminish the seriousness of the offending; it still has the potential to undermine confidence in the commercial world generally.4 While it may not be possible to poini to any particular loss made by an identifiable victim, insider trading is not a victimless crime. Apart from harm to the market and public confidence, in this case there were counter-parties to each of your trades; they themselves had to enter into other transactions to try to cover their own positions. Hartman v DPP (Cth) {2011] ACSR 52 at [94] 10 SENTENCE CDPP v Hill and Kamay48 49 50 51 52 53 55 SC:EH By its very nature, insider trading is particularly difficult to detect, investigate and prosecute. In December 2010, the maximum penalty for insider trading was effectively doubled to imprisonment for 10 years (and/or a fine of the greater of $765,000 or three times the total value of the benefits attributable to the offence). That is the highest penalty provided for in the Corporations Act 2001, and reflects the seriousness with which the legislature regards this offence. These are very serious examples of this offence, for the following reasons. The insider trading charges are all rolled-up charges, involving multiple episodes of criminal conduct. Mr Kamay, you used the inside information to engage in 45 separate transactions, over a period of some eight months. Your offending was carefully planned and premeditated, You deliberately interspersed gains with some losses, to try to conceal what you were doing, You opened separate accounts, with different FX contract providers, You also took steps to conceal what you were doing by using phone services obtained in other people's names. The inside information provided to you was of very high quality and value. ‘You were well aware that Mr Hill was providing the information to you in clear breach of his confidentiality obligations to the ABS. In some cases of insider trading, the court has considered the amount invested by the insider trader to be a more important indicator of criminality than the profit made, For example, an insider trader who invested a lot, but lost money on the transaction, could still be regarded as having engaged in serious criminality, notwithstanding the lack of a profit In this case, the leveraged nature of margin FX contracts meant that you only needed to invest a small amount of your own money to make very substantial profits or Rv Doff (2005) 54 ACSR 200 at [31]. a SENTENCE CDPP v Hill and Kamay56 58 59 losses. The true value of the inside information must have been apparent to you, Mr Kamay, given the consistent and extraordinary profits you made in a relatively short period of time. Any losses that you made were intentional, to try to cover up your wrongdoing. The nature and value of the inside information enabled you, Mr Kamay, to trade with considerable certainty in an otherwise volatile market. The gross profit that you made (more than $8 million) is, by a very considerable margin, the largest insider trading profit to come before an Australian court. Apart from your early plea of guilty, Mr Kamay, and some very minor allowance for your age and immaturity, there is relatively little that can be said by way of mitigation. The DPP is right to describe your conduct, Mr Kamay, as the worst instance of insider trading to have come before the courts in this country. Of the three insider trading offences that you committed on your own, Mr Kamay, I regard charge 10 as the most serious. In saying that, I have had particular regard to the size of the profit (more than $6 million gross) made over a relatively small number of trades, using the second AxiCorp account. By the time of these trades, you were trading with absolute confidence in the value of the inside information. Mr Hiill, the insider trading offence in which you engaged with Mr Kamay was less serious than the three offences engaged in by Mr Kamay on his own. Less than $200,000 of the $8 million gross profit made by Mr Kamay was attributable to your agreement, which was always intended to be limited in size and duration. Unlike in some other cases involving insider trading, neither of you was driven by a gambling or other addiction, or some sort of financial pressure. There is no suggestion that any Verdins-type considerations apply so as to moderate your moral culpability. Although the corporate culture that existed in NAB's foreign currency division when you, Mr Kamay, were working there may have been unduly focussed on making as much money as possible, that does not justify your behaviour. For both of you, your motivation for committing these offences was personal greed, pure and simple. 2 SENTENCE CDPP v Hill and Kamay60 61 62 63 64 66 SC-EH Identity theft From September 2013 onwards, you both obtained mobile phone services using other people's identification information, without their consent; you communicated with each other in relation to your criminal activities using those phone services. Mr Hill, in early September 2013, you asked a former housemate to give you certain identification information, including his driver's licence details, in order to complete a bond refund application. In fact, the application did not require all of the information you requested, You used his information to register a pre-paid SIM card in his name, This forms the basis of charge 3. Mr Kamay, on or about 12 September 2013, you sent a number of texts to someone you knew, under the guise of assisting him with a NAB job application. He provided you with the personal identification information you requested. That same day, you used his information to obtain and register a pre-paid SIM card in his name, This forms the basis of charge 7. Between 12 September 2013 and 9 April 2014, you both used those two phone services to communicate the confidential MEI information. In late April 2014, Mr Kamay, you obtained identification information of one of NAB’s customers. You used that information to purchase and register two mobile phones and pre-paid SIM cards in the customer's name. You each used one of those services from then until the end of the offending on 9 May 2014. This forms the basis of charge 12. ‘The maximum penalty for each charge for this type of identity theft is imprisonment for 5 years and/or a pecuniary penalty of $51,000. The essence of each of these offences* is that you acquired and used another person’s identification information, in connection with telephone services, to pass yourself off as the other person, for the purpose of facilitating the commission of the insider trading offences. Section 372.1A(1) of the Criminal Code (Cth), 1B SENTENCE CDPP v Hill and Kamay67 68 69 70 7 72 B iH Although identity theft is, undoubtedly, a growing problem in our society, these are not particularly serious examples of this offence. In particular, you did not use these people's identities in order to steal from them. None of the three victims of the identity theft charges has provided a victim impact statement. Whilst the offences are connected with the insider trading, they do involve some degree of separate criminality. In many cases, it would be appropriate to order some accumulation between sentences, to reflect that separate criminality. However, having regard to the seriousness of the other charges, and the principles of totality, I will order that the sentences to be imposed for these offences be served wholly concurrently with your other sentences. Money laundering The final charge to which you, Mr Kamay, have pleaded guilty is charge 11, the money laundering charge. This relates to your payment of the deposit of $237,500 for the Albert Park unit. The maximum penalty for the money laundering offence is imprisonment for 20 years and/or a pecuniary penalty of $204,000. The essence of this offence” is that you dealt with money that was, and that you believed to be, the proceeds of crime, in an amount greater than $100,000. The DPP accepts that, overall, you were not attempting to conceal the purchase of the unit, Rather, the DPP says that the purchase of the unit was designed to change the nature of the proceeds of the insider trading crime, from cash in the bank or trading accounts into real property, thereby covering the proceeds of crime in a cloak of respectability. Section 400.4(1) of the Criminal Code (Cth), “4 SENTENCE CDPP v Hill and Kamay74 75 76 7 78 SCEH ‘You were well aware that the money you used for the deposit was the proceeds of crime, and the amount involved was substantial. However, given the lack of an intention to conceal, I regard this as a relatively low level example of this type of offence, meriting a modest sentence. The money laundering charge does represent criminality that is separate and distinct from the predicate insider trading offences. There needs to be some, albeit modest, cumulation to reflect that fact. Personal considerations Mr Kamay, you were born in April 1988, and are now 26. Mr Hill, you were born in June 1989, and are now 25. You both grew up in close-knit families, and were supported and encouraged in your upbringing. In your schooling, you both achieved academically and on the sporting fields, as well as in leadership roles. You both did well at university, and went on to obtain good jobs after graduation You were hard-working, focussed, driven, and eager to succeed. You have both been involved in voluntary activities in the community. You both had promising professional careers ahead of you, which you have almost certainly thrown away by your own actions. Patrick Newton, a forensic psychologist, prepared a report on your behalf, Mr Hill. He noted that, in April 2013, your girlfriend of two years had broken up with you; you reported having, been very depressed and drinking heavily afterwards. He also observed that you had been living away from your home city and family supports, since you moved to Canberra in 2011. I accept that such matters may have clouded your judgment to some extent. But the fact remains that you willingly agreed to participate in what you knew full well to be unlawful activity, and you did so on multiple occasions over an extended period of time. 15 SENTENCE, CDPP v Hill and Kamay81 82 83 85 SCEH Mr Newton also noted that, since your arrest, you have been experiencing some anxiety and depressive symptoms. You have been ruminating over the stupidity of your decisions, and having trouble sleeping; you have also described low energy levels, These symptoms are all reactive to your current predicament, and there is no suggestion that they played any role in your offending. They are not particularly unusual for offenders in your situation. Mr Kamay, reports were also provided on your behalf, by Ms Pamela Matthews, a forensic psychologist, and Mr Clint Gurtman, a psychologist who has been treating you since your arrest. You are not suffering from depression, and have had no problems with alcohol or substance abuse. They describe how you felt driven to succeed in a highly competitive work environment, and to impress your family and friends. Both make mention of your displaying some symptoms of inflated self- esteem or narcissistic personality traits. Neither of you has ever been in trouble with the police before. That is not uncommon in the case of white collar offenders; indeed, it is often their previous good character that enables the white collar offender to be in a trusted position in the first place. You have both provided references from a range of former teachers, employers, family and friends. Your referees all speak very highly of you, and have expressed their shock and disbelief at discovering that you had committed these offences They all regard these offences as being totally out of character for you. T have no issment to doubt that your actions have brought considerable shame and emban yourselves and your families. ‘You are both fortunate to enjoy the continued support of your families and, in your case, Mr Kamay, your gitlfriend of five years. No doubt that will help you to re- integrate into society upon your release from prison. T accept that you are both unlikely to offend again, and have excellent prospects of rehabilitation. 16 SENTENCE CDPP v Hill and Kamay86 87 88 89 SC-EH Guilty pleas, co-operation and contrition ‘Upon your arrests on 9 May 2014, you both initially made “no comment” records of interview. However, by early July 2004, you had both made full disclosure of your conduct to the police At the committal mention on 16 September 2014: (a) Mr Hill, you pleaded guilty to all of the charges against you; and (b) Mr Kamay, you pleaded guilty to all of the charges except for the money laundering charge (charge 11). When the indictment was first filed in this court, you, Mr Kamay, sought to have the money laundering charge stayed, on the grounds of duplication or oppression. After some submissions had been made in relation to that matter, you dropped the stay application. On 27 November 2014, you indicated an intention to plead guilty to that charge too. In the circumstances, I treat you both as having pleaded guilty at the first reasonable opportunity. Your guilty pleas demonstrate a willingness to facilitate the course of justice. The DPP accepts that you are both genuinely remorseful for what you have done, and I will sentence you on that basis. There is a further relevant matter that relates to you, Mr Kamay. By virtue of the operation of the federal confiscation laws, you were liable to pay a pecuniary penalty of around $8 million, representing the gross profits of your offending, Because you had only retained the net profits, that would have left you owing almost $1 million. You reached a settlement with the Commonwealth in which you agreed to forfeit all of your assets, including your equity (of about $160,000) in some property that was not tainted by your offending. In sentencing you, I have had regard to the fact that you have forfeited that non-tainted property, and that you have co-operated in the resolution of this forfeiture issue.’ The latter is further evidence of contrition. Section 320(c) of the Proceeds of Crime Act 2002 (Cth). Section 320(a) of the Proceets of Crime Act 2002 (Cth). v7 SENTENCE CDPP v Hill and Kamay90 OL 92 93, 94 There is some doubt as to whether a judge of this court who is sentencing an offender for a federal offence is required to state what sentence they would have imposed had the offender not pleaded guilty. However, the DPP has requested that I make such a declaration in this case, and your counsel do not oppose that course. Given the desirability of encouraging pleas in cases involving complex white collar crime, I will make declarations under s 6AAA of the Sentencing Act 1991 (Vic). Other relevant considerations Both of your counsel conceded that nothing less than a sentence of immediate imprisonment would be sufficient in this case, That concession was entirely justified, having regard to the seriousness of the offending and the relative paucity of mitigating factors. General deterrence has a central role to play in white collar offending such as this. One important reason for that relates to the difficulty in detecting and investigating white collar crime, particularly insider trading. Courts have often remarked that a stern approach should be taken to those people who receive price sensitive information and use it in breach of trust for personal profit. Other judges have commented on the need for actual custodial sentences in some cases of white collar crime, so that general deterrence has some real bite. I do not accept the submission by Mr Kamay’s counsel that the mere fact of a custodial sentence is sufficient deterrent; it is self-evident that the longer the sentence, the harder the bite, Although you were relatively youthful offenders at the time of offending, the age and immaturity of the offender generally has less role to play in white collar crime than in other types of crime, You were both operating as adults, in the adult sphere of commerce. As the appeal court observed in the case of Hartman, there is a strong need to deter young adults from taking wrongful advantage of the opportunities offered to them in the contemporary business world. Hartinan v R (2011) NSWCCA 261, 8 SENTENCE CDPP v Hill and Kamay95 96 97 98 99 100 101 The sentences to be imposed on you must be sufficient severe to punish you, denounce your criminal conduct, and provide sufficient disincentive to others who may be tempted to engage in similar conduct. Sentence Christopher Hill For each of the offences of abuse of public office (charges 1, 2, 4 and 5), I sentence you to imprisonment of 2 years and 9 months. Torder that the sentences for charges 2, 4and 5 be served wholly concurrently with the sentence for charge 1. For the offence of insider trading (charge 6), I sentence you to 2 year imprisonment. Lorder that 6 months of that sentence be accumulated on the sentence for charge 1 For the identity theft charge (charge 3) I sentence you to 3 months’ imprisonment. 1 order that that sentence be served concurrently with the sentence for charge 1 That means that your total effective sentence is 3 years and 3 months’ imprisonment. I fix a period of 2 years before you become eligible for parole. This means that you will serve a term of imprisonment of not less than 2 years. If a parole order is made at the end of that period, you will serve the rest of your sentence in the community, subject to parole conditions. If you breach those parole conditions, your parole order may be revoked or varied, and you may be sent back to prison for the balance of your sentence. Pursuant to s 19 of the Crimes Act 1914 (Cth), I direct as follows: (a) The sentences on charges 1, 2, 4 and 5 be commenced immediately; (b) The sentence on charge 6 be commenced on 17 June 2016; and. (© The sentence on charge 3 be served wholly concurrently with the sentence on charge 1. 19 SENTENCE CDPP v Hill and Kamay102 103 104 105 106 107 108 109 110 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to a total effective sentence of 4 years and 6 months’ imprisonment, with a minimum non-parole period of 3 years. I declare that the period to be reckoned as already served under this sentence is 98 days, excluding today’s date. That fact is to be noted in the court records. Lukas Kamay Of the four insider trading charges, for the reasons given earlier I regard the three charges against you alone as the most serious of the insider trading charges, and charge 10 as the most serious of those charges. I sentence you to 5 years’ imprisonment on charge 10. I sentence you to 4 years’ imprisonment on each of charges 8 and 9. For the joint insider trading charge (charge 6), I sentence you to 2 years’ imprisonment. 1 will treat charge 10 as the base sentence. I order that 9 months of each of the sentences for charges 8 and 9, and 6 months of the sentence for charge 6, be accumulated on that base sentence. For the money laundering charge (charge 11), I sentence you to 1 year’s imprisonment. I order that 3 months of that sentence be accumulated on the base sentence. For the two identity theft charges (charges 7 and 12), I sentence you to 3 months’ imprisonment on each charge. I order that those sentences be served concurrently with your sentence for charge 10. That means that your total effective sentence is 7 years and 3 months’ imprisonment. 1 fix a period of 4 years and 6 months before you become eligible for parole. This means that you will serve a term of imprisonment of not less than 4 years and 6 months. Ifa parole order is made at the end of that period, you will serve the rest of 20 SENTENCE CDPP v Hill and Kamayyour sentence in the community, subject to parole conditions. If you breach those parole conditions, your parole order may be revoked or varied, and you may be sent back to prison for the balance of your sentence. 111 Pursuant to s 19 of the Crimes Act 1914 (Cth), I direct as follows: (a) (b) © (d@) © © The sentence on charge 10 be commenced immediately; The sentence on charge 8 be commenced on 17 December 2016; The sentence on charge 9 be commenced on 17 September 2017; The sentence on charge 6 be commenced on 17 March 2020; The sentence on charge 11 be commenced on 17 June 2021; The sentences on charges 7 and 12 be served wholly concurrently with the sentence on charge 10. 112 I declare, pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty, I would have sentenced you to a total effective sentence of 10 years’ imprisonment, with a minimum non-parole period of 6 years and 6 months’ imprisonment 113 I declare that the period to be reckoned as already served under this sentence is 97 days, excluding today’s date. That fact is to be noted in the court records. SC:-EH 21 SENTENCE CDPP v Hill and KamayCERTIFICATE I certify that the 21 preceding pages are a true copy of the reasons for sentence of Hollingworth J of the Supreme Court of Victoria delivered on 17 March 2015. DATED this 17% day of March 2015. 2 ‘SENTENCE CDPP v Hill and Kamay