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Jonathan Moylan: Whitehaven hoax doesn't fit usual mould, his lawyer says Jonathan Moylan: Whitehaven hoax doesn't fit usual mould, his lawyer says
(about 1 month later)
The case of an environmental activist whose hoax Australian Stock Exchange email temporarily wiped $314m off the value of Whitehaven Coal does not comfortably fit with other cases of market manipulation, his lawyer says.The case of an environmental activist whose hoax Australian Stock Exchange email temporarily wiped $314m off the value of Whitehaven Coal does not comfortably fit with other cases of market manipulation, his lawyer says.
Sentencing of Jonathan Moylan has been deferred to a date yet to be announced by Justice David Davies, with the court seeming to grapple with the fact that Moylan's actions fitted the definition of white collar crime, but lacked the motivation of greed and profit usually associated with it.Sentencing of Jonathan Moylan has been deferred to a date yet to be announced by Justice David Davies, with the court seeming to grapple with the fact that Moylan's actions fitted the definition of white collar crime, but lacked the motivation of greed and profit usually associated with it.
In January last year Moylan issued a press release on ANZ letterhead saying the bank had withdrawn its $1.2bn loan facility from Whitehaven’s Maules Creek coal project in NSW on environmental and ethical grounds.In January last year Moylan issued a press release on ANZ letterhead saying the bank had withdrawn its $1.2bn loan facility from Whitehaven’s Maules Creek coal project in NSW on environmental and ethical grounds.
Whitehaven’s share price temporarily fell from $3.52 to $3.21, but quickly recovered, with the biggest shareholder being disgraced former mining magnate Nathan Tinkler.Whitehaven’s share price temporarily fell from $3.52 to $3.21, but quickly recovered, with the biggest shareholder being disgraced former mining magnate Nathan Tinkler.
Moylan, 26, of Newcastle, pleaded guilty in May to charges of disseminating false information to the market and faced a possible fine of $495,000 or 10 years in jail.Moylan, 26, of Newcastle, pleaded guilty in May to charges of disseminating false information to the market and faced a possible fine of $495,000 or 10 years in jail.
During the afternoon session of the NSW supreme court hearing on Friday, Moylan's lawyer, Robert Sutherland, emphasised that his client had no insider trader knowledge and was not motivated by monetary gain.During the afternoon session of the NSW supreme court hearing on Friday, Moylan's lawyer, Robert Sutherland, emphasised that his client had no insider trader knowledge and was not motivated by monetary gain.
He urged the judge to consider conditional release of Moylan rather than jail or an intensive correction order.He urged the judge to consider conditional release of Moylan rather than jail or an intensive correction order.
His hoax should not be seen as a white-collar crime, because such crimes were far removed from Moylan's conduct, Sutherland said.His hoax should not be seen as a white-collar crime, because such crimes were far removed from Moylan's conduct, Sutherland said.
He said most cases dealing with the sections of the Corporations Act that Moylan was charged under involved a motivation of financial gain. He said most cases dealing with the sections of the Corporations Act that Moylan was charged under involved a motivation of financial gain.
Instead Moylan was motivated by his view that the mine was a "dirty project" that was harmful to the environment and the surrounding population.Instead Moylan was motivated by his view that the mine was a "dirty project" that was harmful to the environment and the surrounding population.
Sutherland emphasised that journalists should have made inquiries to verify the press release was accurate, rather than racing to publish.Sutherland emphasised that journalists should have made inquiries to verify the press release was accurate, rather than racing to publish.
"We've come not to excuse or explain [Moylan's actions] but to put them into context," he said."We've come not to excuse or explain [Moylan's actions] but to put them into context," he said.
"His actions do not fit in with the kind of actions the [Corporations Act] legislation is intended to deal with.""His actions do not fit in with the kind of actions the [Corporations Act] legislation is intended to deal with."
Sutherland wrapped up by saying Moylan had consistently denied intending to cause any harm to Whitehaven shareholders, and expressed genuine remorse. He had also pleaded guilty and immediately admitted to the hoax.Sutherland wrapped up by saying Moylan had consistently denied intending to cause any harm to Whitehaven shareholders, and expressed genuine remorse. He had also pleaded guilty and immediately admitted to the hoax.
Earlier on Friday, the crown prosecutor, David Staehli, said Moylan knew the information he disseminated was false and did things to make sure the release would be accepted as genuine, such as setting up the email address media@anzcorporate.com to send the release.Earlier on Friday, the crown prosecutor, David Staehli, said Moylan knew the information he disseminated was false and did things to make sure the release would be accepted as genuine, such as setting up the email address media@anzcorporate.com to send the release.
It showed a degree of planning and expectation that people would be deceived, Staehli said.It showed a degree of planning and expectation that people would be deceived, Staehli said.
He pointed out that Moylan had researched the consequences of identity fraud before signing the press release under the name of an ANZ staffer.He pointed out that Moylan had researched the consequences of identity fraud before signing the press release under the name of an ANZ staffer.
The crown should consider the need to deter similar events in future, he argued. Davies seemed to agree with this, saying deterrence should be a "significant factor" in sentencing.The crown should consider the need to deter similar events in future, he argued. Davies seemed to agree with this, saying deterrence should be a "significant factor" in sentencing.
Davies referred to previous fines Moylan had received for his activism and causing "public mischief".Davies referred to previous fines Moylan had received for his activism and causing "public mischief".
But Sutherland maintained that a severe potential penalty from the supreme court – up to 10 years jail – did not fit the crime.But Sutherland maintained that a severe potential penalty from the supreme court – up to 10 years jail – did not fit the crime.
"[Moylan] has found himself in much deeper water than he ever anticipated," he said."[Moylan] has found himself in much deeper water than he ever anticipated," he said.
He likened Moylan's actions to public stunts carried out by hosts of the ABC TV show The Chaser.He likened Moylan's actions to public stunts carried out by hosts of the ABC TV show The Chaser.
"Through his plea of guilty he says to the court if the court puts him on good behaviour, he will adhere to it," Sutherland said."Through his plea of guilty he says to the court if the court puts him on good behaviour, he will adhere to it," Sutherland said.
Moylan was passionate for the environment, his fellow man and what was right, Sutherland said, but acknowledged "that doesn't always make it right".Moylan was passionate for the environment, his fellow man and what was right, Sutherland said, but acknowledged "that doesn't always make it right".
Davies agreed it was a difficult judgment.Davies agreed it was a difficult judgment.
"The difficulty is in one sense in regarding this as white-collar crime is that the offence is white-collar crime but the conditions of it [the crime] are quite different from that," he said."The difficulty is in one sense in regarding this as white-collar crime is that the offence is white-collar crime but the conditions of it [the crime] are quite different from that," he said.
Staehli said earlier in the session that the crown would argue for a custodial sentence, but not for Moylan to actually serve time.Staehli said earlier in the session that the crown would argue for a custodial sentence, but not for Moylan to actually serve time.