Business Law

Sentencing white collar criminals: What are some of the considerations?

Published in: April 2017

The term “white collar crime” conjures up a number of images, but what offences are covered when talking about white collar crime? Also, does a person committing a white collar criminal offence have to wear an actual white collar? In answer to the second question, no, a person does not have to wear a white collared shirt to commit a white collar criminal offence, but other than that, there are a number of elements associated with white collar crime which this piece will explore. 

First, there is no specific definition of “white collar crime” within statutory provisions, but rather the expression can encompass a number of offences such as tax evasion, misappropriation of money by a company director, or insider trading to name a few white collar offences. White collar crimes generally centre amongst a professional or clerical setting by a person taking advantage of their particular knowledge or responsibilities in committing financial fraud.

Punishing white collar criminals

Although white collar offences generally do not involve instances of violence, that fact still does not have an impact in relation to sentencing considerations. In R v McLean (2000) 2 VR 118 (CA), Tadgell JA, with agreement from the other judges, rejected the notion that white collar criminals should expect favourable treatment because they have no prior convictions is misguided, but rather, the person will still be sanctioned by the courts where appropriate(at 139 [48]):

“[A]ny principle to the effect that those with no criminal record who chooses to engage in serious “white collar” crime can expect to be sentenced as though they form a privileged class. Where appropriate, these people are liable to find themselves condignly dealt with, even as first offenders.”  

Additionally, good character may also have little significance for a person found to have committed a white collar crime, as McClellan CJ said when imposing sentence in R v Lo (2007) 74 A Crim R 451 (at 461 [28]):

“In the context of “white collar” offences, good character cannot be given undue significance as a mitigating factor... Even if evidence as to character is afforded some weight, the need for general deterrence may be strong enough to outweigh good character as a significant mitigating factor...”

One important consideration when sentencing a person for any criminal offence is that of general deterrence, and white collar offences are no exception, as Charles JA noted in DPP v Bulfin [1998] 4 VR 114; (1998) 101 A Crim R 40 (CA) where his Honour said (at 13 and 132):

“In the case of white collar crime, the lives of the offenders and their families will frequently have been devastated by the consequences of discovery and punishment. The present case is a very good example. It would be difficult not to feel great sympathy for the respondent’s wife and family and, indeed, for the respondent himself. But I think there is a serious risk that the consequences of discovery and punishment, and the havoc that a custodial sentence usually wreaks on the lives of the white collar criminal and his or her family, may have a tendency to distract attention from the importance of general deterrence ought to carry in the imposition of sentences for crimes such as the present...

Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme...”

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