The long awaited, and long, sentencing decision of 13 December 2024 in respect of former liquidator Peter Amos has now been delivered by Tupman DCJ: R v Amos [2024] NSWDC 687. Amos was sentenced to 4 years jail, with 2 years non-parole. He managed to take over $2.5 million from his company administrations over a period of years before being detected. The outcome is hardly a case of effective general deterrence.
Summary
As liquidator, voluntary administrator and/or deed administrator of five separate companies, Amos transferred funds beyond the agreed or reasonable remuneration for their administration into his personal and business accounts, totaling over $2.5 million. This took place over the course of several years from 2016-2022. The offending was detected by ASIC after Amos failed to lodge relevant returns. Some transfers were made after giving an undertaking to ASIC not to deal with company funds. The amounts transferred significantly exceeded any amounts which could have been charged or agreed for unremunerated work.
Amos pleaded guilty to six Commonwealth offences under s 184(2)(a) of the Corporations Act as to using his position dishonestly, with the intention of directly or indirectly gaining an advantage for himself or another.
The appropriate sentence is based on the relative objective seriousness of each offence, in terms of the money involved and the time involved. Four years imprisonment was imposed, ending on 13 December 2028, with a non-parole period of 2 years.
Relevant factors in sentencing were his early pleas of guilty and significant assistance to the prosecutors. The Judge saw general deterrence as being very important for what was white collar crime. There were mental health issues and extra curial punishment – reputational damage, loss of marriage and suicide attempts. There were however excellent prospects of rehabilitation but, overall, only full time custody was appropriate, with a low non-parole period.
Time period of crimes
His crimes commenced in October 2016. In November 2021, ASIC asked for certain documents. In April 2022, ASIC issued him with a direction that he not accept further insolvency appointments because he had failed to lodge the requested documents. On 15 November 2022, ASIC commenced an investigation and required him to attend an examination pursuant to s 19 of the ASIC Act on 2 February 2023.
At least by December 2022 Amos knew that ASIC was aware he had transferred money without the requisite approvals. He began to realise the seriousness of the position he was in. He started to research suicide methods and twice tried to do so and was admitted to hospital. His major depression, life events at the relevant time and the increasing procrastination that ensued, increased over time. He found himself incapable in confronting creditors to seek remuneration approval and also incapable of doing all of the work necessary to satisfy the basis of any such remuneration approval sought.
The Judge accepted he was suffering from a significant mental illness at the time that he committed the offences and probably for a short time beforehand. To that extent, his moral culpability was somewhat diminished.
“He did not give the impression of being a fraudster or a conman in the way that people who often commit offences of this type present to the Court”.
Objective seriousness of the offending
The objective seriousness of the offending was informed by a number of factors. In particular, he was an administrator and liquidator with considerable experience and as such, he knew that what he was doing was dishonest. He knew that he was only permitted to take funds for work carried out and approved in accordance with remuneration approvals. He knew that transferring a total of just over $2,500,000 from these various accounts to his own business or personal account without agreement, either in advance or granted retrospectively, was dishonest.
Committing the offences involved a significant breach of trust between him and the creditors of the companies. The role of liquidator and administrator is one of trust.
General deterrence was a very important consideration in this case, as it is in relation to all cases involving white collar crime.
“Insolvency practitioners occupy an important and public role and because of the obligations cast on administrators by statute, offences involving the criminal breach of those obligations require a sentence which provides a deterrent to others who are also appointed in that role or who might consider being appointed to that role and who might consider offending in a same or similar way”.
Offences of this type are hard to detect because so much of what they do depends on trust; and they have the potential to undermine public confidence in the insolvency regime.
General deterrence “actually works” for white collar crime?
The Judge concluded by saying that while Amos will not benefit from the time that he spends in jail,
“white collar crime is one of those few areas of sentencing where there is evidence to indicate that general deterrence actually works”.
That view may be questioned. General deterrence, to the extent it can be measured much at all, relies on the size of the penalty and the likelihood of prompt apprehension.[1] Increases in penalties may only be valid if supported by adequate enforcement processes.[2]
While matters of breach of trust will often involve the severe deterrent of a jail sentence, the message conveyed by this matter is that there is little likelihood of prompt or perhaps any apprehension.
Perversely, the investigation, prosecution and sentencing of Amos could be said to signal that access to trust funds may not be detected, as long as one continues to file accounts with ASIC.
That lack of detection can be a reality, Judge Tupman taking into account that offences of this type are hard to detect because so much of what the practitioner does depends on trust.
Nevertheless, random audits and other such processes are detection mechanisms, and effective deterrents.
In this case, the likelihood of detection did not much exist despite the 2016 ILRA practitioner regulation regime with “bodies everywhere” charged with oversighting practitioners.[3]
Other practitioners have professional obligations to report. Then there are the industry and related bodies. Here, detection occurred only when Amos failed to lodge certain routine documents.
As to the knowledge of others, and their possible liability, it was not necessary or relevant for the Judge to ask whether or how Amos managed to take these moneys for some years, to the tune of $2.5 million, without anyone knowing – his staff, fellow practitioners, creditors and their lawyers.
Beyond questions of liability of others, there did not or does not appear to be any random or other audit of trust account moneys, by ASIC or industry bodies, if this case is an illustration of how the system works.
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[1] Regulation in Australia, 2nd ed, Arie Freiberg, Federation Press, 2025 at 570-575.
[2] See Ratcheting up corporate law penalties and the “bystander” impact on insolvency (2019) 20(4&5) INSLB 77, C Symes.
[3] Bodies everywhere — the role of professional bodies in regulating insolvency practitioners, Butterworths Corporation Law Bulletin 17 & 18, November 2018, M Murray.
