Re Terence James Guthrie v Michael Robertson and Tarwarri [1986] FCA 389 (12 November 1986)

FEDERAL COURT OF AUSTRALIA

Re: TERENCE JAMES GUTHRIE
And: MICHAEL ROBERTSON and TARWARRI No. 12 PTY. LTD.
Nos. QLD G54, G55, G57, G58, G69, G70, G71, G72, G73, G74, G75, G76, G97, G99,
G100, G101, G105, G107, G110, G111, G114, G98, G102, G103, G104, G106, G108,
G109, G112 and G113 of 1986
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.

CATCHWORDS

Trade Practices - Consumer Protection - False or misleading representation concerning nature of land - Bait advertising - Course of conduct involving multiple and serious breaches - Deterrent nature of penalty.

Trade Practices Act 1974 (Cth.) ss.53A, 56(1), 79.

Dawson v. World Travel Headquarters Pty. Ltd. (1981) 53 FLR 455.

HEARING

BRISBANE
12:11:1986

COUNSEL for the applicant: M.G. Morley Q.C. with Mr. Q.C. Lanyon-Owen instructed by Director of Public Prosecutions

COUNSEL for the respondent: Mr. A.J. Glynn instructed by Messrs. Baker & Loel

ORDER

It having been directed that the G54 matter be heard and determined together with matters G55, 57, 58, 69-76 (both inclusive), G97-114 (both inclusive),

1. Order that the respondent in each of the abovementioned

matters be convicted.

2. Further order that the respondent Tarwarri No.12 Pty. Ltd. in
matters G98, 102, 103, 104, 106, 108, 109, 112 and 113 be
fined $20,000, the total of the fines, namely $180,000, to be
paid to the District Registrar at Brisbane forthwith.

3. Further order that the respondent Michael Robertson in
respect of each of the following matters, namely G54, 55, 56,
58, 69-76 (both inclusive), 97, 99, 100, 101, 105, 107, 110,
111 and 114 be fined $1,000, the total of the said fines,
namely $21,000, to be paid to the District Registrar at
Brisbane forthwith.

4. Further order that the respondents pay the prosecutor's costs
of and incidental to all of the foregoing matters to be
taxed, such costs to be limited to all matters of things
incurred and prior to and on 22 October, 1986.

5. Direct that exhibits 44, 45, 46, 47, 52, 53, 56, and exhibit
C for identification herein be returned to the witness
Vanderstaay called herein on 23rd October, 1986.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

DECISION

These proceedings deal with a total of 29 contraventions of provisions of Part V of the Trade Practices Act 1974. Those contraventions are of ss.53A and 56(1) of the Trade Practices Act 1974. There are 21 informations laid against Michael Robertson and nine informations against Tarwarri No.12 Pty. Ltd.

2. They arise out of 11 advertisements advertising land for sale on Russell Island. The first advertisement appeared in the "Northern Star" on 5 June 1985, and then on 14 June in that publication, and then on 22 June. The next advertisement was on 22 June in the "Courier Mail" and on 23 June in the "Sunday Mail". The next advertisement was in the "Northern Star" on 28 June 1985, and the next in the "Courier Mail" on 22 August; there was a further advertisement on 18 October 1985 in the "Daily Sun", in that same publication on 19 October, and again in the "Daily Sun" on 16 November, and the last advertisement with which these proceedings deal was on 6 December, again in the "Daily Sun".

3. The advertisements were not identical on each occasion and, in fact, related to a number of different blocks on Russell Island, and the advertisements indicated different matters which were to be sold with the properties advertised.

4. The first advertisement in the name of East Coast Island Sales gives something of the flavour of the remaining advertisements. The name "East Coast Island Sales" is followed by the statement:-

"The trusted name on the Moreton Bay Islands and
the Redlands.

BLUE RIBBON INVESTMENT SEASIDE COTTAGE $9900
OWNER SACRIFICING PROPERTY, DUE TO IMPENDING
ASSETS TEST.
FIRST TIME OFFERED - Located on BAYBREEZE ISLAND.
- In Brisbane's own sunny Moreton Bay. We are
very fortunate to offer this exceptional property
for sale. This outstanding cyclone-proof dwelling
consists of almost everything for a pleasant
seaside holiday or semi-permanent living,
including concrete slab, plenty of furniture,
beds, fridge, stove, generator, power, phone, plus
a host of other features, making it quite
comfortable for the largest of happy families.
This solidly built cottage stands proudly high on
a hill, resting on a large leafy green couch
covered freehold allotment. Boasting picturebook
Moreton Bay, neighbouring islands and mainland
views. (This is definitely a postcard property).
Unbelievably the owner has also disappointedly
sacrificed her 12 ft. alumin. fishing boat, motor
and trailer, 1973 Ford Falcon sedan (registered)
and her 100cc Suzuki Trailbike. All in good
running order. This property is absolutely
outstanding and is understandably valued at
thousands more.
An immediate inspection in our courtesy boat is
strongly advisable.
NO MISPRINT. $9900 FULL PRICE"

And then certain phone numbers are given.

5. Mr. Robertson admits that that advertisement relates to a block of land on Russell Island at 443 Centre Road. The reality is that no such cottage exists, nor was it ever intended that those matters be available for sale.

6. On 443 Centre Road is a galvanized iron-clad shed with a tilt-a-door front. The inside is unlined and the photographs of the interior of that shed (admittedly taken in June 1986) show that it is a poorly built structure, and could not properly be called a habitable dwelling.

7. The object of the exercise was simply to entice persons to the island, where their attention would be switched to other blocks, and the sale, if any, would take place of that block.

8. The other advertisements are of a similar kind.

9. The properties that are covered by the 11th advertisement include 68 Lelani Avenue, Russell Island. That was admitted by Mr. Robertson to be also the subject of the second, third, fourth, fifth and sixth advertisement. The second advertisement was in similar terms to the first but, in conversations with officers of the Trade Practices Commission, Mr. Robertson said that this advertisement and the advertisements which are third, fourth, fifth and sixth, in time, relate to 68 Lelani Avenue. There is no building of any sort on that block.

10. The third advertisement was not in the same terms as the first two. It spoke of the building as being a family beach house. It says:

"Only 2 more weeks is needed (at the vendor's
expense) to complete this well presented, larger
than average 2 b/rm. high-set family holiday house
in the popular Blue Waters Estate."

It spoke of tiled floors, timber wood-grain interior, huge outdoor pergola, colourbond all-weather roof, a rain water tank, power and phone. On this advertisement, a 72 Ford station van, a 14 foot runabout fishing boat and a 150 Yamaha trailbike were referred to, and the price was $12,990.

11. The fourth advertisement was in similar terms. There were some slight variations in the advertisement in the fifth and sixth advertisements.

12. The seventh advertisement was in similar terms to the fifth and sixth. It was said that this related to a property at 29 James Street, which is located on the north-eastern end of Russell Island. That allotment in fact has no building on it, and has an electricity pole located on the block, and is subject to an electricity easement. At no stage has there ever been a building of the kind advertised on it.

13. The eighth advertisement was in these terms:-

" PIONEERS
BEACH
COTTAGE

OUTSTANDING PROPERTY
$10,900

LOCATED ON THE AVOCADO ISLAND OF SOUTH EAST
QUEENSLAND'S BEAUTIFUL MORETON BAY. WHETHER BUYING
TO RESELL OR FOR OUTSTANDING RETURN SEMI PERMANENT
LIVING HOLIDAY RENTALS - WHATEVER, NOT ONLY DOES
THIS PROPERTY BOAST FEATURES EQUIVALENT TO THOSE
ONLY FOUND IN THE ISLANDS OF NORTH QUEENSLAND'S
WHITSUNDAY PASSAGE, BUT INVESTMENT POTENTIAL,
WHICH COULD IMMEDIATELY MAKE YOU THOUSANDS OF
DOLLARS.
THIS IMMACULATE PROFESSIONALLY BUILT CONTEMPORARY
HOLIDAY COTTAGE IS FULLY FURNISHED AND HAS
LITERALLY EVERYTHING, 2 HUGE FAMILY SIZED
BEDROOMS (WITH B.IN WARDROBES) LONG CORRIDORS
LEADING INTO SEPARATE LOUNGE AND DINING AREAS, A
KITCHEN THE SIZE OF NORMAL SUBURBAN HOME, COMPLETE
WITH FRIDGE, STOVE, OVEN, KITCHEN APPLIANCES AND
CROCKERY. A FAMILY SIZE BATHROOM WITH SHOWER AND
TOILET, HOT WATER UNIT LAUNDRY FACILITIES WITH
WASHING MACHINE AND DRYER, FULLY FLYSCREENED WITH
MULTITUDE OF SLIDING GLASS WINDOWS AND DOORS,
LEADING ONTO A HUGE COLONIAL STYLE VERANDAH. FULLY
CARPETED, P. POINTS, LIGHT FITTINGS, AIR
CONDITIONED PLUS A HOST MORE. RESTING ON A
BEAUTIFULLY PRESENTED LARGER THAN AVERAGE
ALLOTMENT. ONLY WALKING DISTANCE TO BEACH AND
DEEP WATER ANCHORAGE. INCREDIBLY THE OWNER HAS
ALSO INCLUDED HIS 1974 FORD STATION SEDAN IN GOOD
RUNNING ORDER, SURF BOARDS, FISHING EQUIPMENT AND
WET SUITS. I STRONGLY URGE ANYONE WHO IS AWARE OF
THE CURRENT BAY ISLAND LAND BOOM DUE TO THE STATE
GOVERNMENT ANNOUNCEMENT TO BUILD A COLOSSAL BRIDGE
LINKING THIS ISLAND TO THE BRISBANE MAINLAND AND
STRADBROKE ISLAND TO INSPECT THIS EXCEPTIONAL
PROPERTY AT ONLY $10,900 FULL PRICE NO MISPRINT
RING

EAST COAST ISLAND SALES"

14. The block in fact referred to does not have a home as described on it. In a photograph taken in mid-1985 there is a mobile home located on the block. The home is still on wheels. There is none of the fixtures referred to in the advertisement, and the home itself, so far as the dimensions can be gauged, is approximately 20 to 25 foot long and 8 to 10 foot wide. In the photographs taken of that block on 12 June 1986, there is a small transportable building of approximately 16 feet by 8 located on that block. Yet again, it has no resemblance to the advertised features.

15. The ninth advertisement refers to the same land.

16. The tenth advertisement speaks of a piece of real estate priced at $10,650:-

"...Two large airy bedrooms, a massive kitchen,
dining and lounge area, shower, toilet, ensuite,
colonial balcony. Long corridors, ... ..."

and so on. It is said to be a rare waterfront allotment. There are photographs which show a view of the waterways surrounding or adjoining Russell Island. This is said by Mr. Robertson to relate to 164 Jingella Street. A block, Lot 2, on the Boulevarde is also referred to. Photographs taken on 12 June 1986 show that land as being very low lying and with no dwelling on the land.

17. The eleventh advertisement shows four technicolour photographs. The first block of land referred to there is said to be Lot 32 Coolibah Street. It is described in the advertisement in these terms:-

"
A BEAUTIFUL MANICURED ALLOTMENT
GOLD COAST MOUNTAIN VIEWS
$7,500
... ... "

18. The second is an allotment which is shown as a waterside block and is headed:-

"
IF A PICTURE PAINTS A THOUSAND WORDS,
YOU COULDN'T POSSIBLY HESITATE AT ONLY
$8,990
... ... "

Mr. Robertson says that that representation relates to Lot 2 on The Boulevarde. The third part of the advertisement:-

"A SUPERB ISLAND COTTAGE
AN ABSOLUTE GIVE-AWAY"

refers to 164 Jingella Street.

19. From a record of interview conducted between officers of the Trade Practices Commission and Mr. Robertson on 19 December 1985, it is clear that "East Coast Island Sales" was a registered business name which originally was registered in the name of one Robert Williams. This was a pseudonym for Michael Robertson. That registration continued until the end of the financial year ending June 1985 when the business name East Coast Island Sales was registered in the name of Tarwarri No.12 Pty. Ltd..

20. The directors of that company at that time were Paul Robertson, the twin brother of Michael Robertson, and Michael Robertson's father, John Robertson. These persons were not resident in Queensland and had no day-to-day connection with the operation of East Coast Island Sales. While Michael Robertson was not a director of that company, he managed it and, in fact, was, as I find, in effective control of East Coast Island Sales and of Tarwarri No.12 Pty. Ltd. at all relevant times.

21. In February 1986, John Robertson resigned as director and Michael Robertson joined his twin brother as directors of Tarwarri No.12 Pty. Ltd.

22. In that record of interview, Mr. Robertson admitted that neither his father nor his twin brother was concerned with the day-to-day running of East Coast Island Sales, but they were informed by him of events concerning the company from time to time.

23. As to the operation of East Coast Island Sales, the respondent, Michael Robertson, admitted that he wrote all of the advertisements for that firm; that he looked after sales as they were made; and that he was not himself concerned with selling.

24. Some reference has to be made to the circumstances which occurred in May of 1985 when, in response to an advertisement in the "Northern Star" which circulates in northern New South Wales, a Mr. Oliver came to Brisbane where he met Mr. Robertson and a Mr. Walters, and that he went with Mr. Robertson to Russell Island. He was taken to a property which had been advertised on 25 May 1985 after he had been shown other allotments available for sale. He was taken to the tin shed at 443 Centre Road, and it was represented to him by Mr. Robertson that that was the property which had been advertised. Robertson told Oliver that he had not seen the advertisement which had appeared, and that he agreed that the advertisement was misleading and that he would take the matter up with the company when he got back to the mainland.

25. Two affidavits have been sworn by former salesmen of East Coast Island Sales; one by James Patterson Mackay Parnell and another by Colin David Mark Walters. Each of them also gave oral evidence and was cross-examined.

26. Michael Robertson admits a number of the paragraphs contained in those affidavits. So far as Mr. Parnell is concerned, he agrees that Mr. Parnell commenced with East Coast Island Sales in early September 1985; that he was trained by Michael Robertson as to the telephone technique and the "island run" to be followed by him. Parnell swears that Robertson explained that he was to turn prospective purchasers off buying the advertised blocks, known as "advertisers", but if anyone really wanted to buy the advertiser, "I was told by Robertson that it was his prerogative as vendor whether he wanted to sell the block." He swears, and Robertson agrees, that Robertson would have taken him to Russell Island about five times, some of which were his weekly stock runs. He swears in paragraph 4 of his affidavit, again with which Mr. Robertson agrees, that:-

"Robertson instructed me to pre-book messages for
my pager whenever I took prospective purchasers to
the island. These messages would say that the
advertiser had been placed under contract. This
was part of the set routine where I was to show
prospective purchasers perhaps 5 or 6 blocks
before showing them the advertiser. Robertson
also instructed me to pick out one block before I
took anyone to Russell Island, because this would
be the one I would genuinely attempt to make a
sale on."

Mr. Parnell resigned from East Coast Island Sales on 26 December 1985.

27. Similarly, Mr. Robertson agrees with identified paragraphs of Mr. Walters's affidavit. In particular, Mr. Robertson agrees that, during the period that Walters worked for Michael Robertson, he personally directed the business of East Coast Island Sales. He says, - and with this Mr. Robertson agrees:-

"The sales technique was to show the prospective
purchaser the island and point out the spots where
land was sold at and show them what was happening
on the island.
After about one and a half hours the prospective
purchaser was shown the advertised block. The
purchaser was to be pursuaded (sic) not to buy the
advertised block.
From about August 1985 if a purchaser insisted
upon buying an advertised block, a pager was used.
The salesman was to receive a phone call advising
him from the office that the block of land was
placed under contract whilst the salesman had been
showing the prospective purchasers over the
block."

28. It was sworn by Walters and denied by Robertson that salesmen were told that, if an advertised block was sold, it would result in termination of employment. I am not prepared to accept the contention of Mr. Walters in this aspect, nor am I prepared to accept that the reason for his termination was, as he claims in his affidavit, that he sold an advertised block in Coolibah Street, Russell Island.

29. I do accept that the technique that was put into effect at the instigation of Michael Robertson and in which he instructed the salesmen was that a pre-programmed message was set into the pager and, if a prospective purchaser indicated any possibility of purchasing the advertised block, that pager was activated and the information conveyed to the purchaser that the block had been placed under contract.

30. The fact that on some occasions, and those occasions seem to be considerably after the relevant periods with which we are concerned, blocks which have been identified as some of the "advertiser" blocks were in fact sold, does not alter my view that the reality of the situation and the course of conduct engaged in by East Coast Island Sales was as I have indicated.

31. The object of the advertisement was to persuade purchasers to attend on Russell Island for the purpose of viewing the advertised blocks and, once there, it was the intention of Robertson, who inserted the advertisements, that they be switched into purchasing another block from East Coast Island Sales.

32. Section 53A (1)(b) of the Trade Practices Act 1974 provides:-

"A corporation shall not, in trade or commerce, in
connexion with the sale or grant, or the possible
sale or grant, of an interest in land or in
connexion with the promotion by any means of the
sale or grant of an interest in land -
...
(b) make a false or misleading representation
concerning the nature of the interest in the
land, the price payable for the land, the
location of the land, the characteristics of
the land, the use to which the land is capable
of being put or may lawfully be put or the
existence or availability of facilities
associated with the land;"

Section 56(1) provides that:-

"A corporation shall not, in trade or commerce,
advertise for supply at a specified price, goods
or services if there are reasonable grounds, of
which the corporation is aware or ought reasonably
to be aware, for believing that the corporation
will not be able to offer for supply those goods
or services at that price for a period that is,
and in quantities that are, reasonable having
regard to the nature of the market in which the
corporation carries on business and the nature of
the advertisement."

33. In respect of each of the first ten advertisements, charges were laid under both s.53A(1)(b) and under s.56(1). They are quite different offences and do not call for the approach to which s.79(2) of the Act is directed. Realistically, what has to be viewed is the whole course of conduct rather than to deal seriatim with each of the 30 informations.

34. Each of the respondents pleaded guilty to each of the informations involving him or it, and the matter adjourned so as to enable matters in dispute as to penalty and other matters relevant to the appropriateness of penalty to be put before the court.

35. Shortly put, the course of advertising in these proceedings involved gross and blatant lies which were inserted in a cynical and deliberate endeavour to tap the greed of the gullible for an unbelievable bargain. It would be fair to say the facts in these proceedings demonstrate convincingly that it is almost impossible to overestimate the gullibility of some members of the consuming public.

36. These proceedings also reflect the philosophy of Mr. Robertson that, if lies were to be told, it was preferable to tell big ones.

37. The advertising carried on over this period was of such a kind that it is unlikely that one could formulate advertisements with less connexion with reality than those which appeared.

38. Bait advertising, it ought to be understood, is a species of fraud. The advertiser engages in deceit by causing the prospective purchaser, on reading the advertisement, to seek a bargain, so glowingly referred to in that advertisement, which bargain does not exist.

39. Persons who pursue the advertised bargain are truly the victims of a gross, deliberate confidence trick. Those people are put to inconvenience and expense in responding to the bait. Competitors of a person who engages in the bait advertising are also affected by that dishonesty.

40. Misleading advertising referred to in s.53A also has a very wide public significance.

41. If people for profit engage in commercial activities, the Parliament has decreed standards of commercial morality. Those standards cannot accommodate conduct which defrauds consumers. That that conduct, both in respect of bait advertising and as respects truth in advertising, is viewed very seriously by the Parliament, is revealed by s.79 of the Trade Practices Act 1974.

42. Sub-section (1) of that section provides:-

"A person who -

(a) contravenes;
(b) aids, abets, counsels or procures a person
to contravene;
(c) induces, or attempts to induce, a person
whether by threats or promises or otherwise,
to contravene;
(d) is in any way, directly or indirectly,
knowingly concerned in, or party to, the
contravention by a person of; or
(e) conspires with others to contravene,

a provision of Part V other than section 52, 52A,
65Q or 65R or sub-section 65F(9) is guilty of an
offence punishable on conviction -

(f) in the case of a person not being a body
corporate - by a fine not exceeding $10,000;
or
(g) in the case of a person being a body
corporate - by a fine not exceeding
$50,000."

43. Viewed simply arithmetically, the corporate respondent is exposed to fines totalling $450,000 and the personal respondent exposed to fines totalling $210,000.

44. As I earlier indicated, the proper approach, however, is not to view the matter by taking each information by itself but to view the matter as a course of conduct of a serious kind extending over a not inconsidereable period, and to have regard to the global effect of that conduct and fashion penalties which properly reflect the view that that conduct deserves to be very seriously punished.

45. It is appropriate to point out that the penalty which should properly be imposed by a court when it is faced with conduct of this kind is such as not only to deter the particular offender from engaging in that conduct again but, perhaps at least as importantly, that others may know that they cannot engage in that conduct prohibited by the Trade Practices Act 1974 of a similar kind to that engaged in in this particular case, without exposing themselves to heavy penalties.

46. This particular case demonstrates the need to deter those who wish to engage in conduct in contravention of ss.53A or 56(1).

47. In Dawson v. World Travel Headquarters Pty. Ltd. (1981) 53 FLR 455, Fisher J. had regard to a number of matters which he enumerated at page 477. He referred to:-

"(a) The objectives of the legislation and in
particular its policy of consumer protection."

In that regard it is important to bear in mind that it is not the object of Parliament to punish those who engage in this conduct. Its primary purpose is to prevent or persuade persons from engaging in that conduct.

48. He then referred to:-

"(b) The absence of fraudulent or dishonest intent
and of deliberation on the part of the defendant.
(c) The degree of negligence in its conduct. (d)
The extent of the carelessness and wilfulness of
its conduct. (e) The extent to which its conduct
has or is likely to have prejudiced consumers. (f)
The efforts which it has made to correct the
situation. (g) The deterrent effect of the
conviction and fines."

49. It is also important to note, however, that the fines must not be oppressive in any particular case.

50. That is a matter of some concern in this case because this case highlights the sentencing dilemma. On the one hand, I am quite satisfied that the conduct engaged in was a callous and serious wrongdoing extending over a period of time, which was engaged in solely for the purpose of profit. On the other hand, the financial resources of both of the respondents are meagre.

51. In the case of Michael Robertson, he is now 22 years old. At the time of his involvement in these contraventions, he was then quite young and inexperienced in business. It is fair to say that he was seduced into the conduct engaged in by his involvement with others in the real estate business where, so his evidence suggests, conduct in which he engaged was a common place.

52. He swore an affidavit deposing and exhibiting ten advertisements similar in kind to the eleven with which these proceedings are concerned, and there was tendered a further 70 advertisements covering a period of time which stops only a few days before the day of the hearing, and those advertisements, it has to be said, are of the same character as those the subject of these proceedings. While I accept that his youth and experience are factors that really have to be taken into account, and while it is true to say that the material of this kind that he exhibits demonstrates that he is not alone in engaging in the conduct proscribed by the Act, that material highlights the need for deterrence.

53. Because the financial resources of the corporate respondent are shown to be small, there is an element of symbolism in the fines that I impose on that entity, but their purpose is to demonstrate that the court views with very real seriousness, and will meet conduct which contravenes the consumer protection provisions of the Trade Practices Act 1974 with condign punishment if needs be.

54. So far as the corporate respondent is concerned, in respect of each of the nine informations laid against it and in respect of which pleas of guilty have been entered and which I accept, I impose a fine of $20,000. That means that the total of the fines imposed on the company is $180,000.

55. So far as Michael Robertson is concerned, he, so the material shows, has little by way of assets. His only source of income at the moment is sickness benefits. I take into account what has been said on his behalf by his counsel; in particular, I have regard to the reports by Dr. Peter Mulholland, a consulting psychiatrist. In his first report, dated 19 August 1986, Dr. Mulholland says that in his view:-

"...Mr. Robertson has been suffering from a
depressive illness probably from about the time in
the middle of December, 1985 when the charges were
first laid. He described feeling depressed,
gloomy, easily upset, withdrawn, and frustrated
most of the time. (However later, when I informed
him that I thought he was suffering from a
depressive illness, he then chose to deny that he
was depressed)."

He referred to the fact that he was taking quite excessive dosages of various drugs, and in his report he later said:-

"...
Whilst I am unfamiliar with the exact nature of
the charges laid against him I do notice that he
went through a phase of disbelief and denial when
these charges were first laid. Since then he
would seem to be in a (sic) exercise of projection
(i.e. blaming) all manner of people for his
predicament such as various solicitors,
accountants, management consultants, previous
employers, and previous employees. I am not in a
position to judge the correctness or otherwise of
his blaming behaviour, however his blaming of
others does seem to be excessive to me and it
enables him to avoid taking full responsibility
for his actions. Of course this blaming of
others, i.e. projection, is not being totally
successful for him and indeed one would not expect
it to be so. At a subconscious or unconscious
level he is turning some of the psychic energy
back into himself by a process of retroflection
and this is why he is depressed. ..."

56. In his later report he refers to the view of Mr. Robertson that his mood will improve when the case is finished. Dr. Mulholland also anticipates that that will be the case. He later said:-

"...
In my opinion, at the present time Mr. Robertson
is still suffering from an anxiety/depression
neurosis of significant degree which one can
mostly conceptualise as a post traumatic stress
reaction or as an adjustment disorder as a
reaction to his present predicament.
Unfortunately this has become complicated by
sedative drug dependence."

He then views with some concern the fact that it may be some time before he will be able to get back to work.

57. The subjective features which apply in Mr. Robertson's circumstances are weighty, but they have to be viewed against conduct which I regard as very serious indeed. In respect of the 21 charges, the informations to which he has pleaded guilty and which pleas I accept, I think an appropriate figure is to order that he be fined $1,000 on each charge. I do that in that sense that a global figure of $21,000 has regard to the subjective features of Mr. Robertson, while imposing a penalty of sufficient gravity to mark the court's disapproval of his conduct. But for his youth, his inexperience, and his other difficulties, he would, in my view, have been quite properly exposed to fines certainly greater than $5,000 on each charge.

58. The conduct was cynical, serious, deliberate, and motivated by profit. It will be punished seriously in those cases where it is demonstrated to have occurred.

59. I propose to order, subject to what counsel say, that the respondents pay the taxed costs of the informants, those costs to be limited to one day.

60. As to the precise form of the orders that I should make, I will hear counsel.