R v G*rant [2006] VSC 235
A property lawyer who was a partner in a two partner, 3 office firm, became depressed and failed to lodge tax returns for 9 years. When the ATO cracked down on lawyers, he lodged the returns late, and became liable for about $200,000 in tax, interest, and penalties.
He stole from his clients’ monies he held in trust. He forged documents. He mortgaged his elderly parents’ unit without their knowledge in a flagrant breach of their trust. He paid the proceeds to the ATO. The Law Institute commenced an audit of his trust account following a complaint. Shortly afterwards, he made a very serious attempt at suicide which was averted only through his wife’s intuition. He voluntarily surrendered his practising certificate. He confessed everthing to the Law Institute, and was genuinely contrite. He had given up the law and found a job as a telemarketer.
A year after voluntarily surrendering it, VCAT suspended his practising certificate for 5 years and ordered that he apply thereafter only for an employee’s practising certificate for a further 5 years. That was in March. At some stage, the Fidelity Fund paid back the clients. To the criminal charges, he pleaded guilty. Strong pyschiatric evidence of very profound clinical depression was adduced. The sentencing judge accepted the solicitor’s genuine intention eventually to repay the whole amount paid out by the Fidelity Fund. The solicitor’s counsel, Lex Lasry QC instructed by Rob Stary & Associates, successfully submitted that the sentence — 3 years’ imprisonment — should be wholely suspended: because the need for specific deterrence was nil, because of the early guilty plea and full cooperation, because of the remorse and genuine intention to repay the Fidelity Fund, and because a person with a serious mental illness is not an appropriate vehicle for general deterrence. As to the legal principles involved, Habersberger J said:
“25 Turning to the broader sentencing considerations, s.188(1)(a) of the Legal Practice Act 1996 provides that the maximum penalty for having a deficiency in your trust account is 15 years’ imprisonment and s.82(1) and s.83(1)(b) of the Crimes Act 1958 provide that the maximum penalty for the respective offences of dishonestly obtaining a financial advantage by deception and of dishonestly producing an accounting document knowing it to be false with a view to gain for yourself is 10 years’ imprisonment.
26 In R v Howse Flatman J said:
“The community is entitled to expect high standards of integrity and responsibility from the legal profession. It is perhaps well expressed in Cole, unreported, 10 May 1974:
‘Defalcations by persons in a position of trust have to be regarded by the courts as much more serious than other types of defalcations. In this regard the solicitor stands in a particular position. He is an officer of this court, he is held out by it as a fit and proper person to practise his profession, to receive his clients’ money and to be the recipient of their justified financial trust and confidence. It is not possible for the courts to regard lightly the defaulting solicitor whose actions tend to undermine the security of ordinary people and the fabric of a profession on which and on whose integrity the public are to such an extent dependent. This is particularly the type of case in which the court is entitled to express on behalf of the community, its disapproval of a particular type of breach of trust involved’.”[1]
I respectfully agree with these statements about the position of defaulting solicitors.
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30. … I therefore consider the importance of specific deterrence to be extremely low. I am quite satisfied that there is no risk that you will commit any offence in the future. Nevertheless, as Eames J, as his Honour then was, said in Director of Public Prosecutions v Serong:
“… breaches of trust by solicitors involving substantial sums of money are matters which the appellate courts have repeatedly said prima facie justify a sentence of imprisonment, notwithstanding the fact, which is common in all such instances, that the offender has no prior convictions and invariably has an exemplary previous reputation: see the unreported decisions of the Court of Criminal Appeal in The Queen v Moffat, 4 December 1992; The Queen v Gough, 11 June 1993; The Queen v Bieske, 18 March 1994. In all of those cases their Honours accepted that special considerations might apply to mitigate that result.”[2]
31 It is quite clear that the most important consideration in terms of the proper exercise of the sentencing discretion in this case is your mental condition at the time of the offences, a matter to which I have referred several times already. …
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34 It is well established that a person suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence.[3] As Mr Lasry recognised, in the case of an offender suffering from a mental disorder “general deterrence is not eliminated but still operates, sensibly moderated.”[4] After carefully considering the evidence of Dr Stocky I have concluded that these principles are applicable in your case so that the need for general deterrence is moderated to some extent.[5]“
