Update, 8 May 2009: The Westralians have been listening to Justice of Appeal Nettle. Someone over there has thrown a 41 year old Margaret River solicitor into the slammer for almost 8, minimum of nearly 5. He stole almost $900,000 from an elderly man who lived alone on a farm.
Original post: A solicitor was convicted of forgery and given an enforced break from practice of a year. Years later, he stole $100,000 in his trust account from a client. He paid debts and took his family on holidays to Greece and Bali. He confessed as soon as a routine audit of his trust account revealed a discrepancy. He handed in his practising certificate to the Legal Services Board’s delegate, and a receiver was appointed to his practice which was sold. It sounds like the receiver might have been a bit sloppy, because the solicitor remained a signatory to a client account.
A week after being interviewed about the theft of $100,000, (‘amazingly’, as the trial judge put it) he stole another $43,000 from another client which he used to stave off bankruptcy at the suit of the Tax Man. When interviewed about that theft, he lied to the police, asserting that he had the client’s permission to withdraw the money.
The trial judge locked the solicitor up for 6 months and suspended an additional year of imprisonment. The DPP appealed against what it said was the manifestly inadequate sentence. Justice of Appeal Nettle, who warned last year on the need for condign punishment to express society’s special revulsion at lawyers’ theft from their trust accounts, was again party to a judgment in the matter of DPP v George B [2009] VSCA 29 making the same point, and would have increased the sentence on appeal but for certain factors peculiar to this offender:
’24 Senior counsel for the Director of Public Prosecutions submitted that, although the judge made mention of the need for general and specific deterrence, her Honour had in fact imposed individual sentences which failed to reflect the gravity of the offences and a very limited degree of cumulation which failed to equate to the level of total criminality.
25 In our view there is some force in that submission. The maximum sentence for theft is 10 years’ imprisonment[2] and the maximum sentence for a deficiency in a trust account is 15 years’ imprisonment.[3] The higher penalty for the latter offence reflects the very serious nature of fraudulent breach of a solicitor’s trust account obligations.[4] As Young, CJ explained in Director of Public Prosecutions v Ryan,[5] offences which demonstrate that a solicitor is not to be trusted bring the whole profession into disrepute and, therefore, a solicitor who is guilty of such offences must be punished severely. The sentences to be imposed in such cases, therefore, must be such as not only to reflect the nature and gravity of the offending but also to make plain the court’s abhorrence and denunciation of the nature of the offending and to provide general deterrence against the possibility of its repetition.[6]
26 Tested according to those principles, we consider that the sentence of only six months’ imprisonment on the count of having a $100,000 deficiency in the trust account was manifestly inadequate to reflect the nature and gravity of the offending. It also seems to us that the sentences of only nine months imposed on the counts of theft of $50,000 fell well short of what was required. There is a further problem, too, that the judge appears to have approached the sentencing task on the basis that the counts of theft were more serious than the count of having a deficiency in the trust account, whereas the latter was the most serious offence of those charged. On the other hand, because the two counts of theft of $50,000 were in effect wholly subsumed in the offence of trust account deficiency, it would not have been inappropriate to order that the sentences imposed on those be served concurrently with the sentence imposed on the trust account deficiency.[7]
27 The sentence of 18 months’ imprisonment imposed in respect of the theft of $43,170.79 is also problematic. Arguably, it was within (even if at the limit of) the judge’s discretion to show mercy in the circumstances of the case.[8] But in our view it was remarkably merciful, as too was the cumulation of only three months of it on the sentences imposed on the other counts.
28 Other things being equal, therefore, we should be inclined to think that the sentencing errors made in respect of the trust account deficiency of $100,000 and the thefts of $50,000, and the very lenient sentence imposed in respect of the theft of $43,170.79, reveal error of principle which should be corrected as part of the maintenance of sentencing standards.[9]
[3] Legal Profession Act 2004, s 3.3.21.
[4] R v Bernstein [2008] VSC 254.
[5] Full Court (Unreported 7 April 1986, 6, Young CJ, Kaye and Tadgell JJ).
[6] R v Krizmanic (CA) [1995] VSC 185 [19] (Callaway JA); R v Kesik [2006] VSC 429 [39] (Coldrey J).
[7] Pearce v The Queen (1998) 194 CLR 610, 623.
[8] R v Osenkowski (1982) 30 SASR 212, 212-213; DPP v Leach [2003] VSCA 96; (2003) 139 A Crim R 64, [48].
[9] R v Clarke (1996) 2 VR 520, 522.
