1. Daniel Sydney Slattery may not apply for a practising certificate until 20 March 2010.
2. Daniel Sydney Slattery may not apply for a practising certificate which would allow him to receive or deal with trust money until 18 June 2028.
3. In the event that Daniel Sydney Slattery is granted a practising certificate, at least 5 of the 10 CPD units he will be obliged to undertake in the first CPD year, pursuant to the Continuing Professional Development Rules 2008, must be in the field of ethics and professional responsibility.
4. Liberty to apply in respect of costs.

1. The respondent, Daniel Sydney Slattery (Slattery or the "legal practitioner") is charged with misconduct pursuant to s.151(2) of the Legal Practice Act 1996 ('the 1996 Act'). In particular, he is charged with three counts of misconduct at common law and six counts of wilful or reckless contravention of the 1996 Act.
2. We note that 'Misconduct' is defined in s. 137of the 1996 Act to mean, among other things:

"(a) misconduct by a legal practitioner or firm in the course of engaging in legal practice, including -

(i) wilful or reckless contravention of this Act, the regulations or practice rules that apply to the practitioner or firm or any other Act that relates to legal practice; ..."

1. The substance of the charges against the legal practitioner are that in the period 2000 to 2002 he:
   • misappropriated a total of $75,000 from six clients;
   • sought to conceal the misappropriations by making false statements on relevant trust records including cheque butts, cash payments, journal entries and trust ledge account entries; and
   • hindered or obstructed the investigation of these matters by making false statements to the inspector and by persuading two of his clients (Collins and Niblett) to make false statements on his behalf.
2. Slattery admits each of the charges.
3. The matters which gave rise to the charges before us were also the subject of a criminal investigation and Slattery was ultimately charged with a number of offences on 26 April 2007.
4. At the first appropriate opportunity Slattery pleaded guilty to three counts of theft; seven counts of having a deficiency in a trust account; four counts of false accounting; three counts of failing to deposit trust monies and three counts of attempting to pervert the course of justice.
5. His Honour Lasry J sentended Slattery to a total effective sentence of eighteen months imprisonment to be wholly suspended for a period of two years. His Honour's reasons for sentence and material tendered during the sentencing hearing have been tendered in these proceedings.[1]
6. Before turning to deal with the disposition of the charges before us, we propose to set out the factual context in which the misconduct occurred.

1. Slattery entered the legal profession late in life having previously served in the Royal Australian Air Force for some 21 years. He joined the Air Force at 16 years of age as an apprentice radio technician. His early life was unquestionably difficult. As Lasry J observed in passing sentence on Slattery:

"That early life included being placed in foster care in Lithgow, New South Wales, and then being returned unexpectedly to your parents at the age of six. That meant changing locations and schools while you came to grips with the trauma of being returned to your parents ... your early life ... including beating by your father who was obviously a very violent man both toward you and toward your mother. I am told that at the age of 16 your intervened in a very aggressive attack by your father on your mother with a knife and removed her and yourself to your uncle's place, ultimately going to Sydney."[2]

1. We return to his Honour's sentencing reasons in more detail later, but at this stage note that in sentencing Slattery his Honour relied on the report of a consultant psychiatrist, Dr David Sturrock. In his report of 15 February 2008 Dr Sturrock says:

The years between 10 and 16 he described as 'horrific' ... his father Sid Slattery was a 'Jekyll and Hyde character' and a 'wife basher'. Sid strapped Daniel repeatedly for minor transgressions. He remembered seeing blood splattered over the walls at times ...

His personal and developmental history suggests that he has had a terrible and at times tragic and emotionally deprived childhood, which he has never really come to terms with.

1. We return to Dr Sturrock's report later.
2. It is to his credit that Slattery overcame these difficulties and rose to the rank of Wing Commander in the Air Force.
3. Slattery retired from the Air Force in 1984 after a very successful career and was the recipient of long service and good conduct medals. He graduated with honours in law from Monash University in 1986 and was admitted to practice in December of that year.
4. Slattery set up a legal practice as a sole practitioner under the name 'Daniel Slattery & Associates'. The practice specialised in family law matters and he became an accredited family law specialist in 1990. As a solicitor he also carried out pro bono work and contributed as a volunteer to the work of the Community Legal Centre in Mount Waverley.
5. In December 1997 Slattery was representing a client, Mrs Angela Parsons, in proceedings in the Family Court at Dandenong. Shortly before the proceedings were commenced Mrs Parsons was murdered by her husband, in the vicinity of the Court. Mr Parsons was subsequently convicted of his wife's murder and sentenced to life imprisonment with a minimum term of 25 years before being eligible for parole.
6. Mrs Parson's murder and the consequent court proceedings had a dramatic and adverse impact on Slattery. In his report Dr Sturrock expresses the opinion that as a result of these events Slattery suffered a major depressive episode with post traumatic stress symptoms.
7. Slattery gave evidence at Mr Parson's committal hearing in mid 1998 and at the subsequent trial in late 1998, during which he learnt more details about his client's murder - including being shown graphic photographs of the deceased's naked and mutilated body. Dr Sturrock notes that Slattery felt emotionally distressed when he saw these photos and continued to experience ongoing emotional distress. His participation in the committal and the trial escalated his symptoms and emotional distress. In his character reference, Darren Mort, a barrister who had been briefed by Slattery on a regular basis, stated that after Mr Parsons was imprisoned he made applications to have the children of marriage visit him in prison. Slattery represented the children's guardian, their aunt Joanna Collins, in this and other related proceedings. Mr Mort observed that these proceedings took an enormous toll on Slattery.
8. As a result of an inspection of Slattery's trust account records on 5 and 6 August 2002 irregularities were noted in relation to his client, Joanna Collins. These irregularities led to an order being made on 20 August 2002 for the appointment of a receiver over the legal practitioner's trust property.
9. An investigation into the dealings of the legal practitioner in relation to Joanna Collins and five other clients was conducted in August and September 2002. Numerous irregularities, mostly in the form of misappropriations of client funds, were detected and are described in the report of the inspector, Mr Brian Collins.[3] These irregularities form the basis of the nine charges against the legal practitioner.
10. On 24 September 2002, pursuant to section 38 of the 1996 Act, Mr Kevin Power (General Manager Professional Standards of the LIV) determined that Slattery was unfit to engage in legal practice and immediately suspended his practising certificate. On 11 October 2002 Slattery made application to the Legal Profession Tribunal, to have the suspension of his practising certificate lifted. He was subsequently granted leave to withdraw that application with an order to pay the respondent's costs.
11. Slattery has not held a practising certificate since 24 September 2002. In April 2003 he was employed as a manager with Victoria Body Corporate Services Pty Ltd and remains in the employ of that organisation. Mr Klein, a director of the company, gave evidence on Slattery's behalf at his sentencing hearing before Lasry J. In the course of that evidence Mr Klein said that Slattery was regarded as a 'valued senior employee undertaking a responsible and trustworthy role' and that the continuation of his employment was assured.
12. The misconduct charges against Slattery remained in abeyance for a number of years pending the finalisation of criminal proceedings against him.
13. On 20 March 2008 Lasry J sentenced Slattery to a total effective sentence of eighteen months imprisonment to be wholly suspended for a period of two years. In the course of his sentencing reasons Lasry J said:
    1. ... Mr Carter submitted on your behalf that your diagnosed conditions justify a sensible moderation of general deterrence and some 'sensible reduction of [your] level of moral culpability' consistent with the principles in [R v Verdin's [2007] VSCA 102]. It does seem to me that your impaired mental functioning may well have interfered with your ability to exercise appropriate judgment and to make calm and rational choices as well as to think clearly. I accept those submissions ...
    2. ... There is no question that rehabilitation is a real prospect in your case and that the delay and the uncertainty has obviously been difficult for you. The matter has been 'hanging over your head' for some considerable time ...
    3. ... I am satisfied that your plea does reflect the remorse you feel about what you have done. I am in no doubt that you are ashamed of what has occurred and that you are determined similar events will not occur again.
    4. ... You have no prior convictions, and by inference, as well as by direct evidence you can, but for these offences, be described as a man of good character.
    5. ... The evidence produced to me supports the conclusion that your rehabilitation both in relation to your psychiatric condition as well as the commission of these offences is well advanced ... Mr Klein's evidence compels the conclusion that your rehabilitation and desire to progress and improve your life is well advanced and stands to your credit.
    6. ... In addition, I received a number of other detailed references, from both personal and professional contacts. Each individual testifies to your qualities and the conscientious manner in which you conducted your practice as a solicitor. Some of the witnesses are familiar with the trauma associated with the murder of Mrs Parsons, and witnessed its effect on you.[4]
14. The criminal charges to which Slattery pleaded guilty arose out of the same factual matrix which underpins the misconduct charges before us. We now turn to outline those facts and it is convenient to do so by client.

1. In July 2002, Slattery received a cheque in the amount of $23,500, dated 5 July 2002, on behalf of a client, Peter Campbell. The legal practitioner failed to pay this cheque into his trust account but instead paid it into his personal account. The whole of that amount was subsequently disbursed and Slattery appropriated to his own purposes amounts totalling $6,000 together with a further amount of $5,270, being counsel's fees subsequently written off by counsel. After all payments had been made, and an agreement with Mr. Campbell for payment of costs to the legal practitioner in the amount of $5,510.95, the balance of $9,144 was remitted to Mr Campbell on 22 July 2002.
2. Slattery also hindered or obstructed the investigations of the inspector in relation to the affairs of his client Mr Campbell. On 5 August 2002, when investigating the file maintained by the legal practitioner in relation to Mr Campbell, the inspector had located references to the receipt of the cheque dated 5 July 2002 in the amount of $23,500. In addition, there was in the file a copy of the actual cheque drawn on the Bank of Melbourne. When the inspector returned on 6 August 2002 to continue his inspection the copy cheque had been removed from the file. When questioned as to whether the amount of $23,500 had been paid, the legal practitioner replied untruthfully that the cheque had not arrived and that he was still waiting for it. When confronted with proof that the cheque had been received, the legal practitioner then confessed that he had banked the cheque in a private bank account. He stated that he did this in order to evade the payment of income tax. When requested to produce the private bank passbook relating to the account into which the cheque had been paid, the legal practitioner failed to provide the passbook.
3. Upon request, the legal practitioner produced a written account in relation to the disposition of the proceeds of the cheque of 5 July in which he said that he had drawn down a bank cheque to pay counsel, in the sum of $5,270. This statement was false, as the barrister concerned had never been paid and had agreed to write off the fees.

1. A client of the legal practitioner, Mrs Joanna Collins, was the guardian of two infant children whose mother, Mrs Parsons, had been murdered by the father of the children, as previously detailed. The facts giving rise to the charges in relation to the affairs of this client are concerned with funds flowing to Mrs Collins on behalf of the children. Those funds were applied by the legal practitioner otherwise than in accordance with her instructions, and in particular:
   • On 21 December 2001, a bank cheque in the amount of $117,632.78 payable to Daniel S. Slattery was received by the legal practitioner as the proceeds of the sale of a property in Albert Park. These were funds of Mrs Collins, to be held by her on behalf of the two children. The legal practitioner failed to bank this cheque in his trust account, but rather banked it in a personal passbook account in his own name. Slattery was unable to produce the passbook relating to the private account in which this cheque was banked and said to the inspector that his practice of banking clients' monies in his own accounts was done in order to avoid paying income tax.
   • After depositing the proceeds of the sale of the property in his own account, the legal practitioner engaged in a practice of misappropriating various sums to his own use and disguising such misappropriations by entering false statements on various documents evidencing the transaction, including cheque butts, cash payment journals and trust ledge accounts.
2. By way of purported explanation of the misappropriations of the client's money to his own use, Slattery referred to an account for services rendered sent to the client on 24 December 2001. This statement was false, because the Law Institute inspector established that the invoice to the client dated 24 December 2001 had in fact been typed on the legal practitioner's computer on either 7 or 8 August 2002. Further, Slattery contacted Mrs Collins on 7 August 2002 reporting that a Law Institute inspector was checking his books and asking that client to do him a favour and to write to the inspector stating that the account had been received by her "early in the New Year". Mrs Collins acceded to this demand and wrote a letter dictated by the legal practitioner which said that the account had been received from the legal practitioner "early in the New Year Year". Mrs Collins later reported to the inspector that she had, in truth, received the invoice on 7 August 2002 and that it was at the request of the legal practitioner that she had falsely stated that the invoice had been received early in the New Year. In addition, Mrs Collins had not been given any figures relating to the disbursement of the settlement monies by the legal practitioner and knew only of an amount of $93,882.10 which had been deposited into her account.
3. Later, Slattery made further attempts to have Mrs Collins make false statements in order to conceal his misappropriations. On 12 August 2002, Mrs Collins reported that the legal practitioner had requested that she tell the inspector "that everything was alright", and to tell the inspector what he, the legal practitioner, directed her to tell. Mrs Collins told the legal practitioner she would not lie for him. Then, on 16 August, Mrs Collins provided to the inspector an undated letter from the legal practitioner, which had been written on Sunday, 11 August 2002 and left in the letter-box of the client. This handwritten letter requested Mrs Collins to agree with lies that the legal practitioner was going to tell the inspector in relation to monies misappropriated from the Collins Trust Account.

1. From December 1996, the legal practitioner held the sum of $3,171.08 in his trust account on account of a client, Dr F.D. Gilchrist, consequent upon the sale of a medical centre operated by Dr Gilchrist which necessitated the retention of a sum necessary to meet possible employee long service leave issues.
2. In July 1999, Slattery opened a Commonwealth Bank Passbook bank account in the name of Daniel Slattery & Associates ITF Frances Gilchrist and, without the authority of Dr Gilchrist, paid the whole of the sum of $3,171.08 into that account. He subsequently withdrew all of those funds in cash and used them for his personal purposes.
3. After the appointment of the Receiver the misappropriation was restored by transfer by the legal practitioner of the sum of $3,171.10 to the account of Dr Gilchrist.

1. In 2000 and 2001, in the course of acting for a client, Dr Susan Ottomanski, the legal practitioner received monies from that client and held them in his trust account.
2. On three occasions between May and December 2001 the legal practitioner misappropriated sums of money totalling $6,200 by drawing cheques upon the client's trust account payable to one of the legal practitioner's personal accounts, and thereafter drawing out the funds in the form of cash. He sought to conceal the misappropriations by making false statements on relevant trust records, including cheque butts, cash payments journal entries and trust ledger account entries.
3. In addition, on 3 April 2002, the legal practitioner received the sum of $4,836.15 from Dr Ottomanski, in payment of an invoice in relation to professional fees, which included the sum of $1,100 in respect of counsel's fees. The legal practitioner paid the full amount into a personal account and subsequently withdrew sums totalling the full amount in the form of cash, and the legal practitioner thereby misappropriated the sum of $1,100.
4. In sum the legal practitioner misappropriated $7,300 of his client's funds.

1. In 2000 and 2001, in the course of acting for a client, Andrew Lowe, the legal practitioner received monies from the client and held the same in his trust account.
2. In March and April 2001 the legal practitioner, on five occasions, drew cheques on the client's trust account in various amounts, totalling $1,825, payable to his personal account and thereafter withdrew all of those sums in the form of cash. He attempted to conceal the misappropriations by making false statements as to the purposes of payment, so that the purpose appeared to be a payment to or on behalf of the client.
3. In January 2003, the legal practitioner stated in writing to the inspector that each of the misappropriated sums was in fact a loan from the client, and stated further that in each case the monies had been repaid in full before the inspection of the legal practitioner's office commenced. Then, in March 2003, Mr Lowe rang the Law Institute inspector and stated that in the case of each misappropriation, the monies were given to the legal practitioner as a loan and were repaid shortly after being borrowed.
4. Therefore, the legal practitioner failed to keep accurate records in relation to each of these transactions and, being a regulated practitioner, borrowed money from a client in contravention of Rule 8 of the Professional Conduct and Practice Rules 2000.

1. Between July and August 2002, Slattery held funds in a trust account on behalf of a client, Denise Niblett, re Estate of Smith. From those funds, the legal practitioner misappropriated a total of $15,815 by, on ten occasions, drawing cheques on the client trust account payable to a personal account and thereafter withdrawing the same from the personal account in the form of cash. He again attempted to conceal the nature of the payment, in each case, by the entry of false statements on relevant trust documents which appeared to indicate that the payment was either to the client or made on behalf of the client.
2. The legal practitioner also hindered or obstructed the inspector carrying out the relevant investigation. On 6 August 2002, he stated to the inspector that all of the payments to the client Denise Niblett in July and August were paid to her or on her behalf. Further, on 8 August 2002, when confronted with the discrepancy between the statement on the trust cheque butt, of a cheque in the amount of $5,000, and the real purpose of the payment, the legal practitioner stated that Denise Niblett had lent him the sum of $5,000.
3. On 13 August 2002, Denise Niblett, in a telephone conversation with the inspector, stated that the trust cheque for $5,000 drawn on 5 July 2002 was a loan to the legal practitioner. She later telephoned the inspector, on 13 November 2002, and on 14 November 2002 spoke to a litigation solicitor for the Law Institute of Victoria Limited stating, in each case, that her earlier statement was false, and that she had in fact no knowledge of any of the ten trust withdrawals. She stated that the legal practitioner had requested her to lie to the inspector that all the monies he had taken from her trust account were loans. She also said that the legal practitioner had prepared a sham loan agreement, which he asked her to write out in her own handwriting to give to the inspector.
4. The deficiency of $15,815 was restored by the legal practitioner on 13 September 2002.
5. Slattery misappropriated a total of $75,000 from the six clients referred to above. The misappropriated funds have been fully repaid by Slattery and there have been no claims on the Fidelity Fund.

1. As we have already indicated, Slattery admits each of the charges and accordingly we find him guilty of those charges.
2. Section 160 of the 1996 Act provides that if the Tribunal finds a legal practitioner guilty of misconduct it may (relevantly in the context of this case) do one or more of the following:
   • make an order imposing a fine not exceeding $50, 000
   • refer the practitioner to the Supreme Court with or without a recommendation that the practitioner's name be struck off the roll of practitioners;
   • make an order specifying a period during which the practitioner may not apply for a practising certificate or for a practising certificate with particular conditions;
   • make any other order the Tribunal thinks fit.

3. Section 159 sets out the penalties which may be imposed if the Tribunal finds a legal practitioner guilty of unsatisfactory conduct. These options are also available in circumstances where the Tribunal finds a legal practitioner guilty of misconduct (see s. 160(i)(a)), and include:
   • an order reprimanding the practitioner;
   • an order that the practitioner undertake a specified course of education; and
   • an order varying the conditions of the practitioner's practising certificate or imposing further conditions or restrictions on the certificate.
4. The LIV submitted that having regard to all the circumstances the nature of the legal practitioners misconduct was of such gravity that it warranted the referral of the practitioner to the Supreme Court with or without a recommendation that he be struck off the roll of practitioners.
5. Mr Green QC, on behalf of the LIV, submitted that the seriousness of the criminal charges to which Slattery pleaded guilty was evident from the catchwords in the judgment of Lasry J and reflected in the sentencing decision, which was 'an essay into whether or not to incarcerate'. The LIV submitted that the disposition of the matter should reflect the fact that the community needs to be assured that theft by a lawyer from a client is unacceptable. It submitted that the context of the hearing before the Tribunal was different to the criminal sentencing context in that the focus of the 1996 Act is protective of the community and that that objective should be at the forefront of the Tribunal's consideration in determining the disposition of this matter, ahead of rehabilitation and deterrence. In particular, Lasry J made no comment about Slattery's rehabilitation as a legal practitioner.
6. Mr Tatarka, counsel for the legal practitioner, drew our attention to the following factors which were said to be relevant to disposition:
   • Slattery has made a significant contribution to the community and in the process has overcome very difficult personal circumstances.
   • Slattery is highly unlikely to re-offend and hence specific deterrence is not a significant factor.
   • As to general deterrence, Slattery's psychological condition reduced his culpability for the offending and makes him an inappropriate vehicle for general deterrence.
   • Slattery is seeking a certificate to practise as a principal of a law practice so that he may attempt to financially rehabilitate himself and his family. In this regard it is said that the events of six years ago have had a significant adverse financial impact on the legal practitioner - his mortgage in 2002 was $50,000 and is now $400,000. Slattery's present earnings provide little scope for debt reduction.
   • Slattery accepts that any practising certificate issued to him ought impose a condition that he not receive or deal with trust money and in addition he would be prepared to undertake such extra CPD units as the Tribunal thought necessary to bring his legal knowledge up to date. Indeed he would be prepared to accommodate any reasonable limitation or condition imposed by the Tribunal as part of his return to practise, including additional CPD requirements in his first year of practice. If granted a practising certificate Slattery intends to offer consulting and legal services to bodies corporate, and so use the body corporate management experience he has acquired in the last 6 years, and his intention is to confine himself to that work.
   • Slattery has already been sentenced by the Supreme Court in respect of the events which gave rise to the matters before the Tribunal and the Tribunal should not 'double up' on the court's general deterrence message.
   • The objective of protecting the public does not necessitate referring the practitioner to the Supreme Court.
7. We now turn to consider these submissions.
8. The Tribunal's powers to discipline legal practitioners for misconduct are primarily protective.[5] But its disciplinary orders are punitive as well as protective, as Maxwell P observed in Quinn v Law Institute of Victoria Limited:

"The available sanctions are, by their nature, punitive, and the objectives of specific and general deterrence - which serve the protection of the public - depend upon the sanctions having punitive effect."[6]

1. His Honour went on to say that in circumstances where the Tribunal's protective function is paramount it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public. That case was concerned with alleged overcharging and the choice before the Tribunal was between a period of suspension and a proffered undertaking to have bills of costs independently assessed. The Court of Appeal held that the latter sanction afforded a greater likelihood of protection of the public.
2. His Honour also said that because the Tribunal's disciplinary jurisdiction is punitive, in the service of protecting the public, the principles applicable to sentencing apply by analogy.
3. In sentencing generally it is necessary to balance specific and general deterrence on the one hand with rehabilitation on the other.[7]
4. Specific deterrence is directed at the particular offender. The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence.
5. In the context of the matter before us the analogy with sentencing also means that the existence of any mental condition, either at the time of the offending or at the time of the Tribunal's hearing, or both, may be relevant to the question of disposition.[8]
6. The uncontested psychiatric evidence is that Slattery suffered from a major depressive episode with post traumatic stress symptoms for the five years leading up to October 2002, when he was examined by Dr Sturrock.[9] The relevance of his mental state on the matters which provide the basis for our finding of misconduct is dealt with by Dr Sturrock in this way:

"It is likely that his compromised mental state was a significant factor in impairing his judgement and leading him to make decisions and behave in a manner which led to his suspension from legal practice in August 2002."[10]

1. In relation to the likelihood of Slattery re-offending Dr Sturrock says:

"Although one can never be certain in predicting the future, I believe there is a very high probability that he would not repeat such indiscretions in the future, were he to return to a law practice."[11]

1. Slattery is not currently taking any antidepressant medication and appears to be coping quite well. In this context we note that he is highly regarded by his current employer.
2. On the basis of the material before us we find that:
   • Slattery was suffering from a mental condition at the time he committed the acts which form the basis of the charges before us.
   • Slattery's impaired mental functioning at the time of offending had the effect of impairing his ability to exercise appropriate judgement and his ability to make calm and rational choices, or to think clearly.
   • Slattery is remorseful for what he has done and it is highly unlikely that he will commit similar acts in the future.
3. In R v Verdins the Court of Appeal held that impaired mental functioning, whether temporary or permanent ('the condition') is relevant to sentencing in at least the following six ways:

"1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

1. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
2. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
3. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[12]
4. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
5. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."
6. In applying these principles to the matter before us we are satisfied that Slattery's condition at the relevant time significantly reduced his moral culpability for the offending conduct, as distinct from his legal responsibility for it. Accordingly denunciation is not a particularly relevant sentencing objective in this case.
7. There is also the need for 'sensible moderation'[13] of general deterrence because an offender in Slattery's position is not an appropriate medium for making an example to others. As the NSW Court of Criminal Appeal said in R v Matthews, the reason for giving less weight to general deterrence in the case of offender suffering from a mental disorder or abnormality lies in the fact that:

"... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgements. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice."[14]

1. In the circumstances of this case, including Slattery's record as a practitioner and established character prior to the events which are the subject of these proceedings, and given our earlier findings as to the effect of Slattery's mental condition on his actions at the relevant time, considerations of specific deterrence should also be significantly moderated.
2. In addition to the foregoing the following matters are also relevant to question of disposition:
   • The seriousness and extent of Slattery's misconduct. The offences committed by Slattery are, manifestly, very serious. He not only stole from his clients, itself a very grave offence, he also falsified trust records in an attempt to escape detection; lied to the inspector and involved his clients in an attempt to deceive the inspector.
   • Slattery has been effectively denied the right to practice since 24 September 2002.
   • The operational period of Slattery's suspended sentence does not end until 20 March 2010.
   • The misappropriated money has been fully repaid by Slattery and there have been no claims on the Fidelity Fund.
   • Slattery's rehabilitation in relation to his misconduct is well advanced.[15]
   • Slattery's past contribution to the community.
   • Setting aside his misconduct, Slattery may be described as a person of good character.
3. Contrary to the LIV's submissions we are not persuaded that, in the circumstances of this case, it is appropriate to refer the practitioner to the Supreme Court. While the practitioner's misconduct was very serious the mitigating factors to which we have referred tell against such an order.
4. In the event that we are not persuaded to refer the legal practitioner to the Supreme Court the LIV submitted that the following limitations would be appropriate if the Tribunal were to permit Slattery to return to legal practice:
   • Slattery should not be permitted to hold an employee practising certificate until, at the very least, the end of the operational period of the suspended sentence.
   • He should not be permitted to hold a principal practising certificate for a substantial period of time, even decades.
   • He should never (or in the alternative, not for a period of 50 years) be permitted to receive or deal with trust money.
5. Dealing with the last point first, there is general agreement that it would be appropriate to order that Slattery not be permitted to apply for a practising certificate which would allow him to receive or deal with trust monies. Section 160(2)(vii) requires that we specify a period during which such a limitation would operate.
6. Given that Slattery is 62 years of age the 50 year limitation period proposed by the LIV seems somewhat excessive. In our view a period of 20 years would adequately protect the public. Of course after the expiry of that period Slattery would not automatically be entitled to receive or deal with trust monies. The conditions attaching to any practising certificate would be a matter for the LIV and/or the Legal Services Board, subject to a right of review.
7. The other limitations proposed by the LIV go to the question of when Slattery may be permitted to apply for a practising certificate and the type of practising certificate he may seek. In this context the LIV points to the incongruity of allowing Slattery to apply for a practising certificate while the operational period of his suspended sentence has not been completed.
8. Mr Tatarka submitted that if Slattery was denied the opportunity to apply for a practising certificate until the completion of the operation period of his suspended sentence it would, given his age, have a very significant impact on him. It was also submitted that the existence of the suspended sentence would provide additional protection for the public and a further incentive for Slattery not to re-offend.
9. The fact that Slattery is presently undergoing a sentence of 18 months imprisonment, albeit wholly suspended for a period of 2 years from the date of its imposition, is clearly a highly relevant consideration, but it is not decisive.
10. We were not referred to any authority in respect of this issue but the High Court's judgement in Ziems has some relevance. In that case the appellant, a barrister, was convicted of manslaughter and sentenced to two years imprisonment with hard labour. The Supreme Court of New South Wales removed the barrister's name from the roll on the ground of his conviction and sentence. Upon appeal to the High Court the appeal was allowed and the appellant suspended from practice during the period of his imprisonment. The fact of conviction and sentence, whilst of great importance, was not regarded as decisive. In his judgment Fullager J said:

"The appellant was, at the time of the hearing of the case by the Supreme Court, and he presumably still is, in prison. The ground on which ultimately the Supreme Court decided that he should be disbarred was the incongruity which would be involved in the appellant's holding the status of a barrister and at the same time serving a sentence of imprisonment. Owen J. said: "if it were permitted, this Court would be holding out the respondent to members of the public as a fit and proper person to act for them in legal matters while he is serving a gaol sentence." The prima facie 'incongruity' may be conceded, though any practical danger to the public might be thought to be reduced by the limitation of activity which normally results from imprisonment. But it is quite consistent with a recognition of the incongruity that suspension during the period of imprisonment should be considered adequate to the occasion."[16]

1. Of course in this case the fact of conviction and sentence is of greater relevance because Slattery's conviction relates to trust account and other offences which he committed during the course of his legal practice.
2. We acknowledge the force of Mr Tatarka's submission - Slattery will be 64 years of age at the completion of his suspended sentence - but the prospect of a person practising as a legal practitioner during the operational period of a suspended sentence for trust account and other offences is clearly inappropriate.
3. The next issue is whether Slattery should be prohibited from applying for a practising certificate until some time after 20 March 2010, that is, whether we should impose, in effect, a further period of suspension from practise beyond the operational period of his suspended sentence.
4. We are not persuaded that any further period of suspension is appropriate or necessary to protect the public. At the end of the operational period of Slattery's sentence he will have been suspended from practise for 7½ years (ie. 24 September 2002 until 20 March 2010). Having regard to the mitigating factors to which we have referred, and Slattery's age, no further period of suspension is warranted.
5. The LIV also proposed that Slattery should not be allowed to hold a principal practising certificate for a substantial period of time, even decades. In essence it is proposed that Slattery hold an employee practising certificate for a substantial period before he is permitted to hold a principal practising certificate. The basis of this submission seems to be that it may take Slattery some time to bring his legal knowledge up to date given that he has not practised for a significant period.
6. We are not persuaded that we should impose these additional conditions, for three reasons:
   1. A period of supervision is unnecessary given the limitation we have imposed on Slattery's capacity to receive or deal with trust monies.
   2. It is not appropriate to make, in effect, a prospective judgement about the currency of Slattery's legal knowledge and whether he would benefit from a period as an employee solicitor. It is open to Slattery to bring his legal knowledge up to date before applying for a practising certificate and if he did so it would be unnecessary to impose further conditions on his practising certificate.
   3. Slattery will be 64 years of age when he becomes eligible to apply for a practising certificate. As a practical matter the conditions proposed by the LIV would effectively preclude him from ever holding a principal practising certificate. This would undoubtedly impose further financial hardship.
7. We will make an order pursuant to section 160(1)(c)(vii) that Slattery may not apply for a practising certificate until 20 March 2010.
8. We now turn to the question of whether we should order that Slattery undertake additional CPD units when he returns to practise.
9. The Continuing Professional Development Rules 2008 provide that in each CPD year (ie. the year beginning 1 April and ending on 31 March in the following year) a legal practitioner must complete at least 10 CPD units and as part of that obligation must complete at least 1 CPD unit in each of the following fields:
   • Ethics and professional responsibility
   • Professional skills
   • Substantive law
   • Practice management and business skills
10. It seems to us that Slattery would particularly benefit from undertaking further training in ethics and professional responsibility. Hence of the 10 CPD units that Slattery will be obliged to undertake in the first year of his return to practise we will order that at least 5 CPD units be in the field of ethics and professional responsibility.
11. Finally, we note that no submissions were made as to costs and we grant liberty to apply in respect of that matter.

[2] [2008] VSC 81 at [21] - [22]

[4] [2008] VSC 81

[5] Hanneberry v Legal Ombudsman [1998] VSCA 142

[6] [2007] VSCA 122 (14 June 2007) at [30]

[7] R v Mooney, per Young CJ unreported, Supreme Court of Victoria Full Court, 21 June 1978, cited in R v Anderson [1981] VicRp 17; [1981] VR 155; R v Tsiaras [1996] IVR 398; and R v Verdins [2007] VSCA 102 (23 May 2007)

[9] Dr Sturrock's report at p.5, Exhibit Slattery 1

[12] [2007] VSCA 102 (23 May 2007) at [32]

[13] R V Yaldiz [1998] 2 VR 376 at 381 per Batt JA (with whome Winneke ACJ and Hampel AJA agreed; cited with approval in R v Verdins, op cit at [17]

[14] [2006] NSWCCA 21; (2004) 160 A Crim R 166 at 175, cited with approval in R v Verdins, op cit at [22]

[15] In this context we have had regard to Lasry J's sentencing remarks, op cit at [37]

[16] [1957] HCA 46; (1957) 97 CLR 279 at 290