Hats off to Justice Ray Finkelstein who obviously has no
part in the ASIC-Vizard plea bargain. It was frustrating to sit in court
yesterday and watch him probe ASIC’s QC for an argument about the unrealised
profits Vizard made – only to be met with a dead bat as ASIC stuck to its
deal.

Finkelstein – a sharp knife in otherwise dull
proceedings – had an eye to suitable penalties reflecting the profit made from
the dirty deed, among other things, but what “profit” figure should be
used? Vizard’s insider trades proved to be immediately very
profitable – but the profits were unrealised as he let his purchases of Sausage
Software and Keycorp run. Finkelstein wanted an argument from ASIC about that
immediate unrealised profit being germane, but couldn’t get
it.

Your
frustrated correspondent in the body of the court would have suggested a
parallel that, if I steal a gambling chip from you in a casino, my subsequent
bad luck in losing it on the roulette wheel has nothing to do with the crime at
all.

Vizard’s silk dared to trot out in mitigation the
pathetic line about his client eventually not making a profit on his
deviousness, but Your Honour wasn’t having any of that. Finkelstein also seemed
to have reservations about the relevance of Shakespearian tragedy in mitigation,
the idea that the higher the position, the harder the fall and therefore go easy
on the penalties.

I’ll
still back the judge to go harder than the ASIC/Vizard deal of a $390,000 fine
and five years suspension. Steve’s also kicking in a $200,000 donation to ASIC
investigation costs. And
let’s not forget what his legal bills must be over the past five years. Do
Crikey’s silk-robed readers want to hazard a guess? How far into seven figures,
all proceedings considered? The maximum potential fine of $600,000 is relatively
small beer.

Peter Fray

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