ANZ hoaxer Jonathan Moylan has been sentenced to 20 months’ imprisonment but will avoid spending any time in jail after the NSW Supreme Court this afternoon found his actions were motivated by a desire to draw attention to the bank’s investment in a coal mine, and that he did not seek to financially profit from the stunt.
In January 2013, Moylan issued a fake press release announcing that ANZ was withdrawing its $1.2 billion investment in Whitehaven Coal’s Maules Creek mine because of environmental concerns.
The fake release was reported by media, and caused Whitehaven shares to plummet from $3.53 to $3.21 until trading was halted when the hoax was discovered.
Moylan was subsequently charged. He pleaded guilty in May of breaching section 1041E of the Corporations Act, an offence which carries a maximum sentence of 10 years jail and fine of $765,000.
Despite the severity of the sentences open to the Court, Justice Davies found that he could not be satisfied beyond a reasonable doubt that Moylan had anticipated the harm his actions would cause to Whitehaven’s investors.
“He had not properly thought through the damage that might have happened and… he was almost surprised when that was pointed out to him,” Justice Davies stated.
However, Justice Davies did note that Moylan’s actions were serious and had caused harm.
“The market was manipulated, people were misled and lost money and investments as a result,” he said.
Moylan was joined in court by a group of around two dozen activists and friends, while up to 100 waited outside holding signs and banners.
Before proceedings began, Lock The Gate Alliance member Rick Laird told the gathering Moylan’s efforts had been a success.
“No-one knew where Maules Creek was a few years ago – they do now,” Laird said. “Let’s just hope Jono gets a lenient sentence.”
Before sending the press release to 98 media outlets, Moylan had attempted to research whether the act would put him in breach of the law, but failed to examine the Corporations Act.
Justice Davies described the proceedings as “an unusual case, perhaps a unique one” given the other similar cases had dealt with offenders alleged to have breached Section 1041E for their own personal gain.
Justice Davies said Moylan had expressed qualified contrition for his actions. However, he rejected an argument made by the activist’s lawyers suggesting media outlets which reported the claims made in the fake press release were to blame for the subsequent harm done.
“I completely reject that submission,” he said. “Whatever responsibility the journalists might have had to check the story, it is quite hypocritical for the offender to point the finger at them when he set up the false media release intending (as he accepted) that at least some of them would accept it was genuine.”
Media outlets including AAP and Fairfax’s Australian Financial Review published stories online before speaking to ANZ.
While their stories were only live briefly – the AFR’s came down after just five minutes – that proved enough time to send the news rippling out to other outlets including Bloomberg, and for investors to start dumping their Whitehaven shares.
Moylan’s guilty plea secured him a 15% reduction on his sentence.
When Justice Davies announced his decision to the Court, Moylan was embraced by several supporters. Wearing a grey shirt, Moylan appeared exhausted and emotional.
On top of the $1,000 security he was ordered to pay, the activist will have to ensure he does not break the law for the duration of his good behaviour bond.
The Court heard he had eight separate previous convictions, all for minor activism related activities.
Activists have complained that the mine was approved quickly and without proper consultation of the locals and farmers it will affect.
Recently the activists scored a win when the Land and Environment Court granted an interim injunction halting clearing of the forest until spring.
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