Nettle JA on sentencing thieving lawyers

R v Maurice B [2008] VSC 254 records the sentencing remarks of Nettle JA apparently sitting in the trial division following a guilty plea by a solicitor who stole a quarter of a million dollars. The solicitor argued the state of his mind was relevant in two ways. First, he said his impaired mental functioning short of psychiatric illness at the time of the offending diminished his moral culpability. Secondly, what appears to have degenerated into a psychiatric illness (depression, anxiety disorder, panic attacks requiring anti-depressants) was a relevant consideration in determining an appropriate sentence.

Based on the psychiatric evidence, Justice of Appeal Nettle gave little truck indeed to the first claim, but did take the mental state of the solicitor by the time he had been through the Legal Profession Tribunal and the criminal charges into account in fashioning an appropriate sentence. In fact, along with the solicitor’s age (67) his mental condition at the time of sentencing was the thing which kept him out of the clink. His Honour conducted a survey of a number of Victorian cases involving thieving solicitors who received suspended sentences of imprisonment and remarked:

‘I doubt that the sentences imposed in at least some of those cases gave due weight to the overriding importance of general deterrence in matters of this kind. For, even allowing that a suspended sentence is a sentence of imprisonment for all purposes, it is manifestly less burdensome than an immediate term of imprisonment. It is also to be remembered that the maximum sentence for the offence of having a deficiency in a trust account has more than doubled since the Legal Professional Practice Act 1958 was first replaced by the Legal Practice Act 1996, from seven years to 15 years’ imprisonment. These days, the idea of a fully suspended sentence in a case of solicitor defalcation will seldom sit easily with the imperative that solicitors who act in fraudulent breach of trust account obligations “must … inevitably suffer severe punishment”.’

The whole of the relevant passage is:

50 It was submitted on your behalf that, because of your age and the punishment which you have already suffered as a result of the loss of your ability to practise and the shame and disgrace of having been exposed as a thief, I should suspend the whole of the sentence. Reliance was placed on the fact that you are without prior conviction and so have never been imprisoned before, and upon the improbability that you will ever offend again. Your counsel also referred to a number of cases of solicitor defalcation in the last 10 years in which considerations of that kind were sufficient to persuade the sentencing judges wholly or partially to suspend the sentences which they imposed.

51 I start with the cases which counsel mentioned. By and large they seem to me to have turned on their own particular facts and circumstances:

1) In R v Sirca,[16] the offender was sentenced to a wholly suspended sentence of imprisonment of three months. But the defalcation in that case was a one-off affair, where the amount of money involved was only $25,000, there was no personal benefit involved, there was an early plea of guilty, the prisoner showed genuine remorse, and the circumstances under which he worked at the time of the offences and his psychological status at that time and at the time of sentencing were all significant matters. Most importantly, perhaps, the offence in that case was one of having a deficiency in a trust account contrary to s 42 of the Legal Profession Practice Act 1958, for which the maximum penalty was only seven years.

2) In R v Howse,[17] the offender had misappropriated some $200,000 over three years and was sentenced to three years’ imprisonment wholly suspended. In that case however, the offending had been informed by a chronic major depressive disorder which substantially reduced the offender’s moral culpability and the need for general deterrence. As in Sirca, too, the offence in issue was contravention of s 42 of the Legal Profession Practice Act 1958, for which the maximum penalty was only seven years imprisonment.

3) In R v John,[18] which, as in this case, involved a contravention s 188 of the Legal Practice Act 1996 (for which the maximum penalty is 15 years’ imprisonment), the offender was sentenced to three years’ imprisonment wholly suspended. But in that case the amount of the shortfall was only $100,000 over a three year period and it was regarded as significant that the prisoner’s life was disintegrating and he was suicidal by the time he was detected. He was, however, a younger man that you, only 45 years’ of age at the time of sentencing, and after detection he had undertaken further tertiary studies. By the time of sentencing he was engaged in a business of inventory control in which he was thought to have a bright future, and he showed genuine remorse and his prospects of completed rehabilitation were excellent.

4) In R v Grant[19] the offender had been affected by a major depressive condition at the time of offending and for that reason it was conceded by the Crown that it was open to the judge wholly to suspend the sentence.

5) In R v Slattery,[20] which it was submitted was closest on its facts to your case, the offender was 61 years’ old and the deficiency was $300,000 and he was sentenced to 18 months’ imprisonment wholly suspended. In that case, however, the offending was the result of a major depressive episode with traumatic stress symptoms the consequence of one of the prisoner’s clients being murdered by her spouse, and in any event it was a remarkably merciful sentence.

52 Furthermore, if I may say so with respect, I doubt that the sentences imposed in at least some of those cases gave due weight to the overriding importance of general deterrence in matters of this kind. For, even allowing that a suspended sentence is a sentence of imprisonment for all purposes, it is manifestly less burdensome than an immediate term of imprisonment.[21] It is also to be remembered that the maximum sentence for the offence of having a deficiency in a trust account has more than doubled since the Legal Professional Practice Act 1958 was first replaced by the Legal Practice Act 1996, from seven years to 15 years’ imprisonment. These days, the idea of a fully suspended sentence in a case of solicitor defalcation will seldom sit easily with the imperative that solicitors who act in fraudulent breach of trust account obligations ‘must … inevitably suffer severe punishment’.[22]

53 A number of cases to which counsel for the Crown referred illustrate the point. In R v Hampson[23] (where, admittedly, the amount of money involved was over $1 million), the offender was sentenced to five years’ imprisonment with a non-parole period of two years. In R v Kesik,[24] where the offending took place over an extended period between 1998 and 2000 and involved some $512,000, the offender was sentenced to a total effective sentence of three years with a non-parole period of 18 months. In R v Bakhaazi,[25] where the amounts involved totalled just over $200,000, the offender was sentenced to a total effective sentence of 39 months’ imprisonment with a non-parole period of 18 months.

54 More generally, as Coldrey J put it in R v Keskik:[26]

[N]ot only do offences of this nature constitute a breach of the trust of clients, but they also constitute a betrayal of the trust of the profession of which you were a member and of the community you swore to serve upon your admission to practice. [They]undermine the confidence the community should have in its legal advisors. Consequently, the courts have a duty, by the sentences imposed on offenders, not only to reflect the gravity of the offences, but also to deter other lawyers who might be minded to commit similar criminal acts.

[16] [2001] VSC 128.

[17] [2002] VSC 197.

[18] [2001] VSC 416.

[19] [2006] VSC 235.

[20] [2008] VSC 81.

[21] R v Feretzanis [2003] VSCA 8 [48] (Callaway JA).

[22] Director of Public Prosecutions v Ryan, Unreported CCA 7 April 1986, 6 (Young CJ); R v Krizmanic [1995] VSC 185 [19] (Callaway JA).

[23] [2006] VSC 229.

[24] [2006] VSC 493.

[25] [2006] VSC 496.

[26] [2006] VSC 493 [39].

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