Anti-coal hoaxer yet to know if he will avoid jail

Anti-coal hoaxer Jonathan Moylan may avoid jail, after prosecutors at his sentencing hearing raised the possibility of an intensive correction order that could allow him to serve a sentence in the community.

The sentencing hearing of reached the end of its first day without a sentence being delivered, with Supreme Court Justice David Davies adjourning proceedings shortly before 4pm. 

Moylan sent an email to 306 recipients, 295 of whom were journalists, which purported to be from ANZ in January 2013.

The email, sent on ANZ letterhead from a protest camp near the Leard State Forest in remote Northern NSW near the town of Boggabri, said that ANZ were withdrawing their loan facility to Whitehaven Coal, who are establishing the Maules Creek coal mine within the forest and adjacent lands.

The release, which was carried by a number of media organisations, caused a $314 million plunge in the share price and a trading halt of Whitehaven shares before the hoax was revealed.

Moylan pleaded guilty to the offense under section 1041(e) of the Corporations Act in May this year.

Presenting the sentencing submissions for the prosecution, David Staehli SC said that while the Crown felt that a sentence of imprisonment was warranted, they were open to an intensive correction order that would allow Moylan to serve his time in the community.

Mr Staehli said that the details of Moylan's actions showed that he had planned the hoax, having researched laws around fraud and identity theft, and having accessed the Whitehaven page on the ASX website more than 14 times.

"The offence involved extensive planning," he told Supreme Court Justice David Davies.  

"Mr Moylan knew the information was false, he engaged in careful planning and deliberation over four days," he said.

Mr Staehli said that while he accepted it was not Moylan's primary intention to cause harm to Whitehaven's shareholders, it could not have escaped him that is was a possible consequence of his actions.

 "We accept that the loss to individual shareholders was not his primary intention, but not that it was outside his contemplation," he said.

"There was significant potential for people to act on the information as if it was genuine."

Prosecutors said that Moylan's purchase of the web domain anzcorporate.com, which he obtained for $27, and his decision to put his own phone number as the contact on the hoax release showed that he intended to deceive those who received the release.

"By putting a false voicemail message on his phone and putting false details on the press release he must have intended people to contact him," he said.    

Mr Staehli said that Moylan had researched business media contacts, as well as the activities of US hoaxers The Yes Men, in the days leading up to the hoax press release.

"He must have thought people would accept the email as true."

Prosecutors also said they recognised that Mr Moylan's crime did not involve any financial benefit, which separated his case from most of its kind. 

It was, he said, a crime committed by a sophisticated and intelligent person that could be regarded as white-collar crime, even if it was unorthodox.  

Defence counsel Robert Sutherland SC said the defence "came to explain, not to excuse".

He said that journalists who had reported the hoax email release as fact without making the appropriate checks were more directly responsible for the damage to Whitehaven's share price than Moylan was.

Referring to a report on the ABC's Mediawatch program which named AAP and the Australian Financial Review, he said that the decision of some journalists to publish the release without making the appropriate checks had been particularly damaging.

"Some, and very few journalists propagated and revelated the hoax," he said. "The appropriate journalistic safeguards had not been exhibited."

He read a transcript of a phone call between Moylan and a journalist who rang him after receiving the release, in which Moylan revealed that there had been a second release outlining the mechanism of the hoax, and that he was not an ANZ representative.  

He said that most of the times that Moylan accessed the Whitehaven page on the ASX website occurred before loan facility was publicised, and were more consistent with Moylan "keeping an eye" on the company against which he was protesting than with planning the hoax.  

He said that Moylan and other activists had discussed buying Whitehaven shares in order to attend and disrupt the annual general meeting.

Justice Davies questioned whether there had been talk of trying to get Moylan elected to the Whitehaven board of directors, to general laughter in the court room.

Defence counsel Sutherland said that "the koala downstairs" – a protester dressed as a koala outside the court – would have a better chance of getting on the board.

Mr Sutherland said previous cases under the corporations act involved insider trading in which there was a direct or indirect financial benefit to the person perpetrating them.

In the respect that this case did not involve financial benefit or inside information, it was unique, he said.

He said that the fact Moylan had researched various acts to do with fraud and identity theft, but not the corporations act, was telling.

"This separates this case from some if not all cases including the predecessors to this offense," he said.

"The misconduct here can't happily be shoehorned with 'recognised market misconduct'."

He said the Crown were determined to "shoehorn" or "whitewash" the case as one of white-collar crime, and that the cases to which they referred in their submissions reflected this.

He said the Crown had "extrapolated backwards" to have Moylan's actions prosecuted under the Corporations Act.  

He took issue with the Crown's assertion that Moylan's remorse was "limited".

"The underlying cause for him perpetrating the hoax was not something he was sorry for, and had no effect on the market."

But he said Moylan's statement that he "did not intend harm to the shareholders of Whitehaven" had been consistent and genuine.

His apologies were "contrite and absolute", he said.

Mr Moylan signed a letter of apology to those who lost money as a result of his actions.

"I'm writing this letter by way of apology to people who have traded Whitehaven shares," it read. 

"The fact that the release, which was intended to bring attention to the loan resulted in trading on the stock market, was a surprise to me."

He particularly apologised to those whose retirement savings were diminished, saying the harm that came to them was against his philosophy on nonviolence.

Mr Sutherland said that Moylan had found himself facing a significant jail term, in the glare of public attention, with some viewing him as a martyr for a cause, and others as the victim of the state bringing "a sledgehammer to break a nut".

In his conclusion, Mr Sutherland quoted Oscar Wilde's 'The Soul of Man Under Socialism', saying that "without agitators, in our incomplete state, there would be no progress towards civilisation," before asking the Justice Davies to ensure sentence was tempered and merciful.

Justice Davies said that while the offence itself was "white collar crime", the circumstances of it were a "somewhat removed from that".   

Moylan displayed little emotion throughout proceedings, rarely conferring with his lawyers. He sat with his hands folded in his lap, wearing a collared grey business shirt and black dress pants.

In addition to the 100-odd supporters who remained outside the Supreme Court, Moylan was supported by members of his family, friends and fellow anti-coal activists.

Before proceedings commenced, Moylan's mother thanked the crowd of supporters.

"I'm overwhelmed that everyone has come out here today," she said.

"Thank you for your support and your love for my family. I thank you from the bottom of my heart," she said, wiping away tears.

A Maules Creek farmer told ninemsn that Moylan was a "giant amongst men".

"Jonathan has been made an example of and strung up by the system," he said.

A fellow anti-coal campaigner told ninemsn that if the Moylan was sent to jail, "There'll be an uproar."

"If they make an example of him, we have a moral duty to follow his example," he said.

Since Moylan's arrest the mine expansion has become a flashpoint for anti-coal campaigners nationwide, with more than 230 arrests made at the site.

Those arrested for obstructing the mine expansion include activists, doctors, religious leaders, students and farmers. 

Justice Davies adjourned at the day's end, and bail was formally continued.

The hearing continues.

Author: Lachlan Williams, Mitchell Ryan; Approving Editor: Nick Pearson, Hal Crawford