By Kate Lahey
A former Macquarie banker who tried to flee the country when the Australian Securities and Investments Commission wanted to question him over his suspicious trading activity has been sentenced to a term in prison.
Oswyn de Silva, 36, has admitted to running a scheme that ASIC says earned him $3.6 million in profits through 29 trades in 2006 and 2007. He has not been charged in relation to that.
Oswyn De Silva
Instead, he was sentenced in the NSW Supreme Court today for contempt of court, after he tried to catch a flight out of Australia days after ASIC served him with orders that he remain in the country for questioning.
However, Justice George Palmer did not specify the length of the sentence, and Mr de Silva, who is HIV positive, remains free until the court has received a thorough report on Mr de Silva's health and whether he can receive adequate treatment in custody.
Lawyers for ASIC and Mr de Silva are expected to report back to the court next Wednesday.
Justice Palmer said he did not believe Mr de Silva had accepted full responsibility for his actions and did not believe the contrition he had shown was sincere.
The judge said Mr de Silva’s evidence was deliberately false and that his decision to flee Australia was premeditated. He said the emotion he had shown in court was because he had been caught out.
Mr de Silva initially claimed he needed to leave Australia for urgent medical treatment. But in an emotional court appearance this week, he broke down in the witness box and said he had panicked at the thought of being in trouble with ASIC.
He described the enormous pressure he felt working at Macquarie, and the stress of being secretly HIV positive in his demanding job, running a global fund for the bank.
Mr de Silva, of Kuala Lumpur, was the joint head of Global Property Securities.
The Australian Securities and Investments Commission claims Mr de Silva made $3.6 million in profit from 29 trades by buying securities, or contracts for difference, in his own name shortly before Macquarie placed large purchase orders for the same securities.
He claims it was slightly less than that, but concedes it was about $3 million.
He told the court that when Macquarie gave him a very generous severance payment in September 2008, he felt so guilty about the ‘‘dirty money’’ that he traded it all back into the market to deliberately lose it.
ASIC argued he was more likely to have simply lost it while trading during the global financial crisis.
Mr de Silva’s admissions in court this week cannot be used against him if he is charged in relation to the trading.
Mr de Silva said he spiralled into cocaine abuse after leaving Macquarie. He said he discovered he was HIV-positive in November 2005 but did not tell his employer.
His relationship with Macquarie soured over a pay dispute around that time.
ASIC argued that Mr de Silva should go to jail for one year.
His lawyers tendered a doctor's report saying his CD4 blood cells, "the heart of the immune system", had fallen to a dangerously low level, not far from the threshold for AIDS, and jail would be bad for his health.