Forrest v Commonwealth Director of Public Prosecutions [2026] FCAFC 69 is the first application under s 30AB(1)(a) of the Federal Court of Australia Act 1976 (Cth) determined by a Full Court.
The Full Court (Lee, Abraham and Vandongen JJ) reduced a six-year insider trading sentence to five years and three months. The decision deals with, amongst other things:
(1) the obligation (or rather the absence thereof) to quantify a guilty plea discount as a specific percentage under the Commonwealth sentencing regime;
(2) the circumstances in which adverse inferences from an offender’s silence may be drawn at sentencing; and
(3) the extent to which post-offending conduct may properly bear on remorse and the weight of a plea, and whether it may also be used to assess the objective seriousness of the offending. It is therefore essential reading for practitioners advising on federal sentencing.
Facts
Forrest was an investment manager. He provided services to a client’s family office and had access to the client’s private office. While the client was absent, Forrest accessed the client’s computer without permission. He photographed confidential slide decks (the Pitch Deck) about a proposed corporate acquisition, in breach of his confidentiality obligations. Forrest used that information to acquire a substantial parcel of shares in the target company.
He communicated with a journalist to secure publication of a favourable article about the acquisition. He also procured three others to acquire shares. His profit was approximately $300,000. When police executed a search warrant, Forrest denied having inside information. Police recovered deleted photographs of the Pitch Deck from his phone.
Forrest was charged with two rolled-up insider trading offences contrary to ss 1043A(1) and 1311(1) of the Corporations Act 2001 (Cth) and one offence of carrying on a financial services business without a licence contrary to s 911A of the Corporations Act. He pleaded guilty at first mention and was committed to the Federal Court for sentence.
Bromwich J sentenced him to six years’ imprisonment with a three-year non-parole period, taking the licence offence into account on a schedule under s 16BA of the Crimes Act 1914 (Cth): Commonwealth Director of Public Prosecutions v Forrest [2026] FCA 14 (‘Primary Judgment’) at [115]–[117].
Issues on appeal
The applicant pressed seven grounds of appeal. Four of the seven are the subject of this note: the failure to specify a numerical guilty plea discount; the treatment of general deterrence; adverse inferences from the offender’s silence at sentencing; and the use of post-offending denials in assessing objective seriousness.
Grounds 4 and 5 were established: at [107] per Abraham and Vandongen JJ. Grounds 1, 2, 6 and 7 were rejected: at [112] per Abraham and Vandongen JJ.
Reasons
1. The utilitarian value of a guilty plea
Bromwich J declined at Primary Judgment [94] to specify a percentage for the utilitarian value of the pleas. Abraham and Vandongen JJ upheld that approach: at [117]. Section 16A(2)(g) of the Crimes Act neither requires nor prohibits quantification. The contrast with s 16AC, which mandates specification for sentences reduced for future cooperation, reflects a legislative choice: at [125]–[126].
Post-Xiao authority goes no higher than treating specification as desirable: at [134]–[138] per Abraham and Vandongen JJ; Waters v The King [2025] NSWCCA 226 at [51] per Adamson JA and Dixon v The King [2026] WASCA 48 at [117]. Arguments from comity with New South Wales practice failed.
Cross-jurisdictional practice cannot impose requirements the Commonwealth statute does not: at [145]–[148]. No error was established: at [149]–[151]. This ground was accordingly rejected. Notwithstanding this, their Honours applied a 25 per cent discount on resentencing: at [234].
2. General deterrence in insider trading
Drawing on Beech-Jones JA’s analysis in Lazarus v R [2023] NSWCCA 214 at [2]–[5], Abraham and Vandongen JJ held at [158] that sentencing courts may identify general deterrence as a primary consideration for a particular class of offending.
Such statements are consistent with s 16A and the instinctive synthesis approach in Markarian v The Queen [2005] HCA 25 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ. This ground was accordingly rejected.
3. Adverse inferences from silence on sentence
At Primary Judgment [72], Bromwich J inferred that Forrest had not “merely chanced upon” the Pitch Deck. He invoked Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 reasoning in the absence of evidence from Forrest. At Primary Judgment [57], he had reasoned that the Weissensteiner limitation had “little or no application to sentencing” because, after a guilty plea, the central purpose of the right to silence is absent.
Abraham and Vandongen JJ held the approach impermissible as inconsistent with Strbak v The Queen [2020] HCA 10; (2020) 267 CLR 494 at [13]: at [180] and [185]. Strbak holds that such inferences are available only in the “rare and exceptional” Azzopardi circumstances.
The matter must be peculiarly within the offender’s knowledge and incapable of proof from any other source: at [181] per Abraham and Vandongen JJ. Neither condition was met. Mr Cole remained a potential witness and forensic evidence from his own computer was available: at [184]. This ground was accordingly established.
The applicant also challenged the findings at Primary Judgment [73] and [14], but those challenges were rejected, as both findings were supported by the agreed facts alone and did not involve Weissensteiner reasoning: at [186]–[189].
4. Post-offending denials and objective criminality
This was the determinative ground for Lee J: at [34]. Within the s 16A(2)(a) assessment, Bromwich J described Forrest’s post-search-warrant denials as “a further and important measure of the criminality involved”: Primary Judgment [83].
He then found the objective seriousness to be “significant”: Primary Judgment [84]. Both Lee J (at [47]–[49]) and Abraham and Vandongen JJ (at [190]–[196]) held this was error. Post-offending conduct may properly bear on remorse and the weight of a plea: Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 at [11]–[14] per Gaudron, Gummow and Callinan JJ (applied at [45] per Lee J).
It cannot, however, rationally affect the objective seriousness of the offences: at [194] per Abraham and Vandongen JJ. The respondent’s senior counsel accepted that doing so would constitute error: at [49] per Lee. This ground was accordingly established.
Implications
The principal implications of the decision are threefold:
First, the Commonwealth sentencing regime imposes no obligation to quantify a guilty plea discount as a specific percentage. That distinguishes the federal position from State regimes that mandate quantification, including s 9AA of the Sentencing Act 1995 (WA). Failure to specify is not of itself appellable error, though specification is nonetheless desirable (see [152]).
Secondly, Strbak applies in federal sentencing. Adverse inferences from an offender’s silence at sentencing are available only in the “rare and exceptional” Azzopardi circumstances. The matter must be peculiarly within the offender’s knowledge and incapable of proof from any other source.
Thirdly, post-offending conduct may properly bear on remorse and the weight of a plea. It cannot, however, be treated as a measure of the objective seriousness of the offending.
