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R v Silver [2020] QCA 102

appeal against sentence — 6 counts of using position dishonestly with intention of gaining financial advantage offence contrary to s 184(2)(A) of Corporations Act 2001 (Cth) — offence relates to $1,635,000.00 — additional state offences — original sentence imposed 3 years’ imprisonment with 2 year and 6 month non-parole period — offender sentenced to 8 years imprisonment for state offences — manifest excess nature and circumstances of the offence — s 16A(2)(a) — offender director of one scheme and shadow director of other — in both schemes offender was principal decision-maker and in complete control of movement of investment moneys— offender dishonestly dissipated funds for purposes other than those for which investors made investment and contrary to representations made to those investors — assertion that sentencing judge failed to give appropriate weight to various factors in sentencing process absent specific error is insufficient to establish that sentence imposed was manifestly excessive — sentencing process involves exercise of discretion — no one single correct sentence — sentencing judge had regard for offender’s youth and vulnerability as well as circumstances that offending occurred against background of offender’s father’s involvement in earlier dishonest schemes and current schemes — no basis to conclude that sentencing judge failed to determine relevant dispute of facts — testing evidencing borderline intellectual functioning was taken into account — sentencing judge rightly observed that finding must be viewed in context of sophisticated scheme where offender was actively involved in key aspects of that offending including preparation of false documentation and dishonest use of position as director — offender significantly benefited financially from dishonest conduct — offender’s involvement over extended period of time in sophisticated scheme by which multiple investors were defrauded of large sums for offender’s benefit warranted prior to cooperation pursuant to section 13A an effective head sentence of 10 years’ imprisonment even allowing for youth lack of criminal history relationship with father psychological factors and pleas of guilty — no basis to conclude that sentences imposed were manifestly excessive — reductions evidenced proper reflection of extent of applicant’s cooperation whilst also ensuring that sentences did not constitute affront to society — sentences were neither unreasonable nor plainly unjust — no misapplication of sentencing principles — sentences were not manifestly excessive — cumulative and concurrent sentences — structure of sentences on counts of dishonest use of position was not in accordance with provisions of Crimes Act 1914 (Cth) — error is to be corrected by ordering that in respect of each of those counts offender to be released on recognisance after serving 2.5 years of those sentences of imprisonment — leave to appeal granted — appeal against sentence allowed — sentences imposed to be varied such that offender is sentenced to 3 years imprisonment on each count with order that they be released on recognisance under s 19AC of Crimes Act after serving 2.5 years — offender is to give security after offender has served period of imprisonment in amount of $2000
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