Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and sentencing - Legal practitioner stealing from client - Two counts - Whether term of immediate imprisonment open - Whether total effective sentence of 2 years 6 months' immediate imprisonment infringed totality principle

Birch v The Queen (1993) 69 A Crim R 181

Dimanopoulos v The State of Western Australia [2011] WASCA 62

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fogg v The State of Western Australia [2011] WASCA 11

Heaney v The State of Western Australia [No 2] [2013] WASCA 238; (2013) 95 ATR 690

McNamara v The State of Western Australia [2010] WASCA 193

R v Pont [2000] NSWCCA 419; (2000) 121 A Crim R 302

Reynolds v The State of Western Australia [2010] WASCA 60

Skipworth v The State of Western Australia [2008] WASCA 64

Smith v The Queen [2003] WASCA 235

Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123

1 JUDGMENT OF THE COURT: The appellant was a solicitor. He pleaded guilty to two counts of stealing a total of $40,000 from two different clients. He was sentenced to a total effective sentence of 2 years 6 months' immediate imprisonment. He appeals against that sentence, advancing, in substance, two contentions. First, he contends that it was not open to the sentencing judge to exclude suspension of the term of imprisonment. Secondly, he contends that in ordering the sentences for the two counts be served cumulatively, producing a total effective sentence of 30 months, the total sentence infringed the first limb of the totality principle.

2 For the reasons that follow, we do not accept either of these contentions, and would dismiss the appeal.

3 In substance, the appellant was charged as follows:

(1) Between 16 December 2010 and 12 March 2011 at Perth, the appellant stole a sum of $20,000 in money, the property of David Thomas and being the amount of a general deficiency, which money had lately been received by the appellant with a direction that it be applied to fees for legal services provided by the appellant.

(2) Between 14 March 2011 and 5 April 2011 at Perth, the appellant stole the sum of $20,000 in money, the property of Malcolm David Burden and being the amount of a general deficiency, which money had lately been received by the appellant with a direction that it be applied to fees for legal services provided by the appellant.

4 Both charges alleged offences against s 378(9) of the Criminal Code (WA). That section provides that if the property stolen is money received by the offender with a direction that it be applied to a specified purpose, the maximum sentence for stealing is 10 years.

5 The facts were not and are not in dispute.[1]

6 The facts of count 1 are that the appellant was acting for Mr Thomas from 5 February 2010 in relation to a matrimonial property dispute and associated Family Court of Western Australia proceedings. He initially estimated his fees at $3,000 and requested that his client pay this amount on trust. This was done on 8 February 2010.[2]

7 In the course of the resolution of the matter, Mr Thomas and his wife sold a property. From the proceeds of that sale, it was agreed that there be an interim distribution of $50,000 to each party from the account in which the proceeds of the sale had been placed.[3]

8 On 22 October 2010, the appellant emailed Mr Thomas requesting his bank account details into which the interim distribution could be paid. He responded by directing the appellant to receive the money into the appellant's trust account. On 17 December 2010, the appellant received a bank cheque for $50,000 payable to Dutton Legal which the appellant deposited into his general account, taking the balance of that account to $53,000.[4]

9 Over the period from 23 December 2010 to 1 February 2011, the appellant withdrew $20,289.51 from the general account for his own use, reducing the balance to $32,710.49. On 1 February 2011, the appellant transferred $30,000 from his general account to Mr Thomas's bank account, reducing the balance of the general account to $2,680.49.[5]

10 The appellant did not invoice Mr Thomas for legal services or provide him with a trust account statement.

11 In or around June 2011, the appellant and Mr Thomas met and the appellant agreed to repay him $12,000 in instalments of $1,000. The appellant paid only one such instalment.[6]

12 Count 2 arose from another family law matter in which the appellant acted for Mr Burden with respect to an application by his former partner in the Supreme Court for partition and sale of a jointly-owned property. The property was sold on 29 December 2009 and the net proceeds placed in a joint interest bearing trust account. Mr Burden was not represented at that time.[7]

13 On 4 February 2011, a consent order was made permitting Mr Burden to draw up to $20,000 from that account for the purposes of paying legal fees and disbursements. Mr Burden then engaged the appellant on 6 March 2011 in respect of Family Court of Western Australia proceedings. He signed a written retainer agreement in which the appellant stipulated an amount to be paid on account of costs of $10,000. The appellant then informed the other party's lawyer that he was acting and requested transfer of the $20,000.[8]

14 Subsequently on 15 March 2011, the National Australia Bank transferred the sum of $20,000 to the appellant's general account, this being the account which he had nominated in his letter to the other party's lawyer. This amount took the balance of the general account to $20,500. By 4 April 2011, the general account had a credit balance of only $278.07.[9]

15 The appellant did not invoice Mr Burden for legal services and did not provide him with a trust account statement. In both cases, the appellant applied funds withdrawn from his general account which he had received on trust from his respective clients to personal expenditure.[10]

16 The appellant was 54 years of age at the time of sentencing, having been born in 1962.

17 He was born in India, and is one of five children. He came with his family to Perth as a child and was blessed with supportive and nurturing parents. He had the benefit of a good education.[11]

18 After leaving school, he trained as a chef before taking up studies in accountancy. He worked in that area for some years as an employed accountant and on his own account before deciding to study law in his late 30s. He completed his law degree and, after serving articles, was admitted as a legal practitioner. Within a short time after completing his first professional year, he established his own practice in family and commercial law.[12]

19 The appellant was married at an early age and has two children aged 26 and 23. This marriage came to an end after 32 years. The breakup was stressful. His current partner is supportive of him.[13]

20 His Honour outlined the facts of the offending and the appellant's personal circumstances in the terms we have already summarised.

21 The judge found that the appellant's offences were not a result of stress or strains, but rather were committed simply through self-interest and dishonesty.[14] The offences could not be explained by any incompetence or inadequate book-keeping resources. The fact that the appellant put forward those matters in mitigation reflected a lack of acceptance of responsibility by him.[15]

22 The appellant was struck off by the Full Bench as a result of conduct relating to 13 different clients from whom the appellant received money on trust and which he failed to deal with properly in various respects.[16] While the appellant was not to be punished for that conduct, it demonstrated that his offending conduct could not be viewed as isolated, but rather was consistent with other dishonest conduct on his part at the expense of clients.[17]

23 The appellant's offending caused substantial losses to the victims. The victims were compensated by the Solicitors' Guarantee Fund to the extent of the financial loss, but were unlikely ever to be fully compensated for the distress caused by the appellant's offending.[18] Mr Burden was a vulnerable client. His victim impact statement showed that he was very distressed by the appellant's actions and suffered losses far in excess of the money that the appellant fraudulently took from him.[19]

24 The appellant pleaded guilty, for which he was given a 17% discount on each individual sentence.[20]

25 The victims had been compensated for their losses as follows. The appellant paid Mr Burden what should have been repaid to the Solicitors' Guarantee Fund. In the case of Mr Thomas the appellant provided a bank cheque payable to the Solicitors' Guarantee Fund covering the amount which it had expended, together with interest.[21] The judge recognised that the acts of restitution were mitigatory, but observed that they did not reflect acceptance of responsibility or contrition.[22]

26 The appellant was a first offender and of prior good character.[23]

27 The judge noted that it had been conceded that imprisonment was the only appropriate disposition.[24]

28 The judge referred to the judgment of McLure P in Dimanopoulos v The State of Western Australia,[25] relating to sentencing for the offence of stealing as a servant. That is the subject of ground 1 of the appeal.

29 His Honour found that it would be inappropriate to suspend the term of imprisonment, finding that the offences are too serious 'by reason of the egregious breaches of trust involved' to warrant any disposition other than immediate imprisonment. The judge observed that the appellant's favourable personal antecedents were relevant to the term of the sentence, and would be taken into account, but did not militate against an immediate term of imprisonment.[26] That conclusion is challenged by ground 4.

30 The judge stated that, absent any mitigating factors, the starting point or head sentence[27] would be 2 years' imprisonment on each count. The judge discounted that by 17% on account of the pleas of guilty, reducing the sentence to 20 months. His Honour further discounted the term by 5 months for the mitigatory effect of the appellant's prior good character and restitution to produce a sentence of 15 months' imprisonment on each count.

31 His Honour determined that the two sentences should be served cumulatively, finding that totality principle did not require him to reduce the individual terms or to make them partially concurrent. His Honour observed that the offences involved two separate victims, they were discrete offences and, in his Honour's view, a proper reflection of the appellant's total criminality was found in the total effective sentence of 2 years 6 months.[28] That conclusion is the subject of ground 2.

33 There were initially five grounds of appeal. At the hearing of the appeal, the appellant abandoned grounds 3 and 5.[29] The substance of the remaining three grounds (retaining the original numbering) is as follows:

1. The sentencing judge erred in applying, or applying by analogy, sentencing principles for the offences of stealing as a servant or social security fraud when the appellant's offences were not analogous.
2. The total effective sentence infringed the first limb of the totality principle in that by ordering that the sentences for the two offences be served cumulatively rather than concurrently, the punishment was disproportionate to the seriousness of the appellant's offending.
3. The sentencing judge erred in ordering that the term of imprisonment be served immediately when only suspended imprisonment was justified.

34 Leave to appeal on ground 2 was granted, with the question of leave on the other grounds being referred to the hearing of the appeal.[30]

35 At the hearing of the appeal, the appellant suggested that grounds 1 and 4 could be dealt with together. It is convenient to proceed in that way, and to commence with those grounds.

36 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).

37 A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences.[31]

38 The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation.[32] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.[33]

39 The substance of the complaint made by grounds 1 and 4 is that the judge should have found that suspension of the term of imprisonment was appropriate, and it was not open to find that the term of imprisonment should be served immediately. No oral submissions were advanced in relation to ground 1, as distinct from ground 4. In essence, taken with ground 4, it appears to suggest that the erroneous application, by analogy, of principles relating to stealing as a servant may have led to the erroneous failure to suspend the term of imprisonment.

40 In support of his contention that the term of imprisonment should have been suspended, the appellant points to the fact that the money he stole was entrusted to him ultimately for the payment of his fees.[34] Notwithstanding that fact, in our opinion, it was well open for the sentencing judge to conclude that suspension of the appellant's term of imprisonment was inappropriate and would not have been a proper reflection of the seriousness of his offending. Indeed, in our view, on a proper exercise of the sentencing discretion, it would not have been open to suspend the terms of imprisonment. In essence, that is because of the serious features of the appellant's offending, and the absence of a number of mitigating factors commonly present in many other cases of stealing. We proceed to explain that conclusion.

41 We respectfully agree with the characterisation by the sentencing judge of the appellant's offences as involving 'egregious breaches of trust'.[35] The relationship of solicitor and client is a paradigm fiduciary relationship. Trust and confidence is at the heart of that relationship. For a solicitor to steal money from his client is an appalling breach of that trust. Such conduct abuses the special status of legal practitioners as members of the legal profession, affecting public confidence in and undermining the institution of which they are a member.[36] To say, as the appellant does, that if the appellant had done legal work and rendered invoices he ultimately would have been entitled to that money (or some of it) misses the point. The money remained the client's money unless and until it was applied to the purpose directed by the client. The trust and confidence reposed by a client in their solicitor reinforces the client's entitlement to expect that their solicitor will respect that.

42 The appellant's offences were, in no sense, isolated acts. They each involved a course of conduct, over a period of several weeks, during which amounts were removed by the appellant from the accounts. Moreover, as the sentencing judge explained, the appellant's conduct the subject of his striking off reinforces the conclusion that these offences were not in any respect isolated conduct.

43 His offences were not done as a result of stresses or strains, but simply because he allowed his self-interest and dishonesty to triumph over his clients' interests. His offences caused substantial loss and distress to his clients.

44 The judge was not satisfied that the appellant was remorseful.

45 Insofar as ground 1 is pursued, it has no merit. The sentencing judge referred to sentences for stealing as a servant by way of analogy only to a limited extent, and to that extent counsel for the appellant before the sentencing judge accepted the analogy. The sentencing judge suggested, by an analogy with offending for stealing as a servant, and with reference to the breach of trust involved, that the significance given to general deterrence meant that it was exceptional in fact for immediate imprisonment to be avoided.[37] Counsel for the appellant did not cavil with that analogy.[38] That was the extent of the sentencing judge's reference to offences of stealing as a servant in the course of the sentencing remarks.[39] The maximum sentence for the appellant's offences was 10 years, the same as the maximum for stealing as a servant. Similarly, the sentencing judge referred to sentences for social security fraud merely in the context of asserting that ordinarily general deterrence takes priority over personal considerations in the sentencing disposition.[40] For the reasons already given, insofar as the sentencing judge found that the breach of trust involved in the appellant's offending militated strongly against the suspension of his term of imprisonment, his Honour did not err.

46 For these reasons, we would not grant leave to appeal on grounds 1 and 4.

Ground 2: was the totality principle infringed?

47 The appellant contends that in ordering that the two sentences be served cumulatively, rather than concurrently, the sentencing judge breached the first limb of the totality principle. In essence, it is suggested that only an order that the two sentences be served concurrently would have produced a total sentence that appropriately reflected the overall criminality of the appellant's offending, viewed in all its circumstances and in the personal circumstances of the appellant.[41] In support of that contention, the appellant refers to the cases involving stealing as a servant reviewed by Mazza JA in Zande v The State of Western Australia,[42] submitting that when account is taken of the significantly lesser sums involved in the appellant's offences, the appellant's sentence of 2 years 6 months was 'way out of line',[43] with the sentences in those other cases.[44]

49 An assessment of the seriousness of offences of stealing does not involve a singular focus on the amount stolen. The amount stolen is not the only or even necessarily the most important consideration.[45] All the relevant facts and circumstances of the offending must be considered, together with the offender's personal circumstances. Among the relevant circumstances are the period over which the stealing occurred, the reasons for the offending, the use to which the offender put the money, and the effect of the offending on the victim.[46] Also relevant is whether and to what extent the offences involved a breach of trust.[47] In this case, as we have explained, the appellant's offences involved a gross breach of trust. In our opinion, the features of the appellant's offending and his personal circumstances to which we have already referred[48] amply sustain the judge's exercise of discretion to impose a total sentence of 30 months' immediate imprisonment.

50 Evaluating all the facts and circumstances of the appellant's overall offending and his personal circumstances, having regard to reasonably comparable cases and all relevant sentencing factors, we are satisfied that the term of imprisonment imposed namely 2 years 6 months was within the range of an appropriate exercise of discretion.

51 For these reasons, we would refuse leave to appeal on grounds 1 and 4, and dismiss the appeal.

[1] The following outline is taken from the sentencing remarks.

[25] Dimanopoulos v The State of Western Australia [2011] WASCA 62.

[27] Within the meaning of s 9AA of the Sentencing Act 1995 (WA).

[31] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14]; Fogg v The State of Western Australia [2011] WASCA 11 [9].

[32] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84].

[34] Appellant's submissions [26], appeal ts 4 - 5, 6.

[36] R v Pont [2000] NSWCCA 419; (2000) 121 A Crim R 302 [47], [55].

[41] Appellant's submissions [10] - [14], appeal ts 7 - 8.

[42] Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123 [37] - [42].

[44] Appellant's submissions [48], appeal ts 7 - 8.

[45] Heaney v The State of Western Australia [No 2] [2013] WASCA 238; (2013) 95 ATR 690 [22].

[46] See, for example, R v Barrick (1985) 81 Crim App R 78, 82; Birch v The Queen (1993) 69 A Crim R 181; Smith v The Queen [2003] WASCA 235 [29]; Heaney [22]. While these cases concern offences of stealing as a servant, the same applies more generally to offences of stealing.

[47] Reynolds v The State of Western Australia [2010] WASCA 60 [10], [12]; McNamara v The State of Western Australia [2010] WASCA 193 [15], [16]; Dimanopoulos v The State of Western Australia [2011] WASCA 62 [19], [20]; Heaney [21], [23].