Director of Public Prosecutions v Avery [2009] TASSC 27

Director of Public Prosecutions v Avery [2009] TASSC 27 - TASSC 2009 case summary — Zoe

[25]

10 While consistency and standardisation of sentences remain desirable goals, their principled application is more problematic in practice. Comparable sentences are elusive for the reasons stated by Nettlefold J in Reynolds [1974] TASSC 46. General comparison by an appellate court permits examination of a range, provided that no mathematical equation or recourse to a limited number of cases is attempted or accepted as definitive (Berry [1968] TASSC 90; Cairns [1975] TASSC 64; and R v Franklin [1991] Tas R 54). The Court's sentencing database (see Professor Warner, Sentencing in Tasmania, 2 ed, 2.238) is useful, but not determinative. Here the Director urges the Court to pay regard to cases involving dishonesty by legal practitioners. He referred the Court to the sentences imposed on Lyon (23 July 1990, 4 years' imprisonment backdated to 24 April, 1990), Holmes (19 December 1996, 12 months' imprisonment suspended), McDonald (4 July 2001, 2 years 3 months' imprisonment, 15 months suspended), Fulton (13 December 2001, 2 years 6 months' imprisonment, 16 months suspended), Williams (4 July 2003, 6 years 6 months' imprisonment), McCulloch and Barron (14 November 2007, 18 months' imprisonment, 6 months suspended respectively) and Shirley (30 May 2008, 3 years 6 months' imprisonment, 2 years non-parole). Those disparate sentences illustrate the dangers of direct comparison. The amounts differed, which, whilst relevant, might have reflected opportunity or lack thereof. None had previous convictions and each had been respected in their discipline. The suggestion here is only that the conduct of the respondent ought be regarded as warranting a sanction towards the higher end of the scale. In turn, that posits the question asked by Nettlefold J in Reynolds as to whether there is ever a comparable sentence for a legal practitioner. Examination of cases of stealing involving accountants or financial managers (Franklin (supra)); Room (25 August 1987, 8 years' imprisonment); Saunders ([2000] TASSC 22, 3 years 9 months' imprisonment), Badger ([1997] TASSC 27, 6 years' imprisonment), Murray (25 April 1997, 4 years 6 months' imprisonment), Litchfield (25 January 1998, 4 years' imprisonment); those engaged in business (Durovic (12 December 1993, 8 years 6 months' imprisonment), Feldmanis (30 June 1983, 4 years' imprisonment), Prettyman ([1987] TASSC 34, 5 years' imprisonment); and public servants, Braslin (21 September 1999, 4 years 6 months' imprisonment), Brown (13 November 1995, 4 years 6 months' imprisonment), Lansdell (11 April 2000, a bank teller who received 3 years' imprisonment for the theft of $200,000), might provide assistance, but such ought not govern this determination. It may be that the higher the fall adds weight to the mitigating allowance. As the learned sentencing judge here observed, "His fall has been a considerable one".

[29]

14 The amendment to the Code altering the requirement for the State to first obtain leave, does not equate State appeals with those by a person sentenced. In this jurisdiction, State appeals based solely on the ground of manifest inadequacy are not infrequent. An incomplete survey of appeals brought by the Director between 2004 and 2009 shows some 11 appeals against sentence and one against orders made under mental health legislation. The majority of those appeals involved the ground of inadequacy. That "decreased rarity" is to be found in most Australian jurisdictions, despite the obiter of Barwick CJ and Murphy J in Griffiths (supra), and irrespective of whether the relevant statute requires "leave" or "as of right" (Criminal Appeal Act 1907 (UK); Criminal Appeal Act 1912 (NSW)). Some consider the increase to be a product of the political demands for "law and order" commencing in New South Wales in the 1970s, an increased level of crime in the era, or the complexities required of State legal officers in responding to media and claims by victims (see generally, Law Society Journal, April 2008, Thomson at 26 - 27). In this jurisdiction, those societal responses or pressures are reflected in statute (the Act, Pt9, ss17, 81A; the Corrections Act 1997; the repeal of the Parole Act 1975 by Act No 51 of 1997, Sch3, and the repeal of the Penalties Remission Act 1934). However, the use of the ground of manifest inadequacy is not without difficulty. Appeal on the basis of principle such as inconsistency or disparity, statutory contravention, prevalence, outside the range, failure to observe a guideline, judgment, and the like, can be more readily identified and dealt with by an appellate court. Likewise, when the State seeks an increment of the permitted range as a response to community expectations. If it is shown that a particular sentencing standard is too low or that prevalence requires adjustment, the standard ought only be raised gradually and after due warning (R v Barber (1976) 14 SASR 388; Poyner v R (1986) 66 ALR 264) although this is not a fixed principle (Devine (1993) 2 Tas R 458). Here if it is accepted that the penalties imposed on legal practitioners are generally inadequate, a significant increase in this respondent's sentence as a matter of general principle, without notice, would be inappropriate. But mere "inadequacy" is more problematic. Parliaments have altered the definitional basis for culpability or elements of criminal conduct in diverse areas such as rape, environmental or regulatory offences, manslaughter, forms of robbery or corporate fraud, drugs and the like. In turn, those changes have impacted on adequacy and comparison. The State, as custodian of community expectation and public interest, has an obligation to represent those interests by appellate review. But response ought be clearly articulated and measured, and reflect informed public opinion.

[50]

34 The respondent was entitled to the benefit of his plea, and the mitigating matters advanced on his behalf. Those matters included assertions that significant funds related to work performed and not billed. The appellant did not challenge those assertions and require a "disputed facts" hearing. The learned sentencing judge was required to pay regard to those matters until challenge (Thompson v R [1973] Tas SR 78; Smith v R [1979] TASSC 48; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270). Whilst the Act, s81(1), permits the Court to receive information as it thinks fit and is not bound by the rules of evidence in that reception, there remains an obligation for the mitigating matters raised by the defence to be placed in issue, either by the prosecuting counsel or the sentencing judicial officer. Here the offender challenged the proposition that the losses all lay with the complainants and, inferentially, challenged portion of the prosecution's averments. In doing so, the Court was required to give regard to the Act, s81(4), upon challenge by the opponent. The discount for the plea was affected by the fact that on trial the evidentiary requirements would have been considerable. The amount pleaded to was considerable, although in the case of Williams, the sum of $3.7m was misappropriated and a loss to clients of $1.18m identified. Here the actual loss said to have been suffered by clients was in dispute and, absent resolution, required the learned sentencing judge to respond accordingly. The State did not seek to call evidence or provide material contesting the matters asserted by counsel. A separate matter raised by counsel was that the loss suffered by the firm and the legal corporation was lessened by recourse to undistributed earnings for work in progress or completed, and the retention of valuable items such as artworks was not disputed by the State. Absent contest or a disputed facts hearing, the learned sentencing judge was required to take those matters into account. Punishment for a crime of this nature ought reflect both the dishonesty of the perpetrator and the harm caused. The appellant has not shown the sentence to be manifestly inadequate.

[54]

37 The grounds differ. Ground 2, as formulated, could not succeed in principle. The amount or item stated in an indictment does not necessarily establish a right to compensation. Nor does the plea acknowledge anything other than the theft or taking. There may have been return to the owner or restitution made. Here the facts establish that little money has been repaid. But there was no acknowledgement that, without more, the complainant named in each count in fact suffered loss. The plea in some instances included a claim that, although not entitled, the money taken represented or included money due to the firm and, if such be the case, the loss was suffered by the offender's legal partner. Ground 4 incorrectly states that no issue was raised "as to the quantum of loss as a result of the offence". The issue was raised as to whether the named complainant, rather than the firm, had suffered the loss. The example of Williams (supra) illustrates the point. The amount stolen in Williams stated in the indictment was $3,764,687. Some of that money had been misappropriated from one client's account to pay another. The loss actually suffered was said to be $1.18m. On the Director's argument, civil judgments ought to have been entered in favour of each client for the sum alleged. That person would, in law, be entitled to enforce the judgment. It is no answer to say that the State would not countenance abuse of process. Once made, the compensation order is one in favour of the named complainant, not the State. The State itself could simply decide to let the offender attempt to redress the injustice. The amount specified in the indictment does not govern the quantum of the loss, nor necessarily its existence. The plea was to the crime alleged. An example can be seen in an examination of count 1 which contained 46 particulars involving 49 cheques. A plea to this Court does not necessarily mean acknowledgement of each sum or transaction. On the argument of the Director, the plea simpliciter would bind the terms of the compensation order.

[77]

"However, if an application for a compensation order in favour of a victim of the offence is made to a court sentencing an offender the court will have the power and the duty to consider any evidence which may be material to that application, whether in relation to issues of causation, quantum of loss or other factors which may, in the particular circumstances, be relevant to determine whether or not any loss established should be compensated in full or at all. The Judge who is required to assess compensation under s 117 should proceed by reference to the same principles as those which would apply in an action for damages for personal injury: R v Fraser [1975] 2 NSWLR 521 at 525 - 526 and R v McDonald [1979] 1 NSWLR 451 per Street CJ and Lee J. This approach will include the application of such rules as, by statute or otherwise, are currently applied in an ordinary common law action for damages, for example those relating to contributory negligence and mitigation of damages (Sentencing Act s 113). The rules of natural justice must be observed. This will include an obligation to ensure that the parties, and in particular the offender, have due notice of the intended application and a sufficient opportunity of being heard. The onus of establishing an entitlement to compensation will be upon the applicant, that is either the State or the victim, and, except where this is agreed there will need to be evidence to establish the identity of the victim, the causation of the loss and its extent as well as any other facts which may need to be established in the particular case. Where there is a real issue whether the person claiming compensation has suffered any loss or as to the amount of his or her loss, the Court may not make a compensation order based merely on the prosecutor's representations to the court, but must require evidence proving the amount claimed as compensation: R v Horsham Justices; Ex parte Richards [1985] 2 All ER 1114; [1985] 1 WLR 986 (1986) 82 Cr App R 254. Whether or not the hearing will involve the taking of further evidence will depend upon the circumstances of the case, but ordinarily the evidence given at the trial should be sufficient: R v Bowen (1969) 90 WN (Pt 1) (NSW) 82 at 83 and R v McDonald. The facts which need to be established to make an order for compensation must be established according to the civil standard of proof: s 114 of the Sentencing Act and R v Field [1982] 1 NSWLR 488."

[160]

•

The total of the amounts stolen and misappropriated was $512,218.78.

•

Very little of that money has been repaid. To be precise, Mr Avery has repaid a total of $36,500.51, which is a little over 7 per cent of the total amount misappropriated and stolen. Two clients received full refunds from him. Three individuals received partial reimbursement. The rest of his victims have received nothing from him.

•

Mr Avery's criminal conduct extended over nearly six years.

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His criminal conduct involved a large number of dishonest acts. Although he pleaded guilty to 130 charges, some of those charges related to multiple acts of dishonesty. Count 1 was a rolled up count that related to 46 misappropriations from Taslaw Pty. Count 2 was a rolled up count that related to five thefts of amounts paid by clients to Mr Avery as the agent of Taslaw Pty. Count 62 was a rolled up count relating to 14 thefts from money belonging to a client named Moore. Quite apart from the acts of misappropriation and stealing, there were many dishonest acts whereby Mr Avery falsified accounting records to conceal his dishonest activities.

•

Mr Avery's crimes each involved breaches of trust. He breached the fiduciary duties that he owed to his clients as a legal practitioner. He breached the fiduciary duties that he owed to his co-directors as a director of Taslaw Pty.

•

Crimes like this reduce the confidence of the public in the legal profession and cause harm to the reputation of the legal profession generally.

•

In many cases, Mr Avery stole some of the proceeds of claims for workers compensation, and for damages for personal injuries. The victims included at least 10 recipients of workers compensation and at least 40 recipients of damages for personal injuries. The funds that such clients received must often have included amounts that were intended to compensate them for total or partial incapacity for work, as well as future medical expenses. Some of these victims might have been financially disadvantaged as a result of their injuries.

•

Mr Avery's financial position was above average. He had an income of about $150,000 per annum. This was a case of greed, not need. He committed these crimes because he was living far beyond his means.

At a glance

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Judgment (212 paragraphs)

Director of Public Prosecutions v Avery [2009] TASSC 27 (1 May 2009)

Director of Public Prosecutions v Avery [2009] TASSC 27 (1 May 2009)

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Cases Cited (19)