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Thieving soli out of jail cops Fidelity Fund’s Sentencing Act compo application

April 12th, 2010 · No Comments

Legal Services Board v GW [2010] VSC 105 is a decision of Justice Robson.  A Victorian solicitor stole a million bucks from his clients and went to jail.  The Legal Services Board made no application for compensation under s. 86 of the Sentencing Act, 1991 because, wearing its Fidelity Fund hat, it thought the solicitor did not have enough dough to make it worthwhile.  It did get the benefit of a successful suit against Crown Casino, though, where the solicitor gambled away some of the stolen money: see Victorian Lawyers RPA Ltd v GW [2006] VSC 73, and subsequently brought a s. 86 application at the invitation of the OPP.  That application was the subject of this latest decision.

The cause of action t sued Crown on was under s. 67 of the Lotteries Gaming and Betting Act, 1966 which said:

‘Where any money is stolen or embezzled and paid to any person as or for or by way of or on account of a wager or bet the person from whom the money was stolen or embezzled may in any court of competent jurisdiction recover the money or any sum not exceeding the amount thereof from the person to whom the money was so paid.’

The Board settled with Crown, on confidential terms.  The Proceeds of Crime Directorate within the Office of Public Prosecutions later contacted the Board and advised that it had obtained an order from the Supreme Court freezing funds in a bank account in which it believed the solicitor to have an interest.  The Board took up the OPP’s invitation belatedly to seek a compensation order under s. 86 of the Sentencing Act, 1991, which allows victims of crime to seek compensation from a convicted criminal.

The solicitor applied to stay the s. 86 application as an abuse of process on the basis that it was so unfair that the Board did not propose to inform the Court how much it had recovered under the settlement with Crown that the maintenance of the proceedings amounted to an abuse of process.  He failed.  The fact that the solicitor could simply have subpoenaed the settlement agreement (since compulsion trumps contractual confidentiality), but declined to do so, could not have assisted his cries of ‘Help! Help! I’m being oppressed.’  But one thing was known about the amount of the settlement, namely that it was less than $315,000, in turn less than the amount being claimed by way of s. 86 compensation.  Justice Robson said if the amount of the settlement did not emerge by the time of trial, the unfairness suggested by the solicitor (which suggestion Justice Robson neither subscribed to nor criticised) could be cured by assuming that the settlement sum was only a smidge less than $315,000.

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Tags: Criminal liability