R v Hovan

Re-sentence 20 In the applicant's favour, I am mindful that it was always his intention to repay the loan the subject of the first charge and that, in respect of the second and third charges, his clients would have had no objection to his retaining the amount which he received. Nevertheless, the three offences involved dishonesty on the part of a man pursuing a profession which, in the public interest, demands a high degree of probity. The second and third offences also involved his dealing with money in such a way as to conceal its receipt from the receiver appointed by the Law Society. Further, those offences were committed while he was on bail in respect of the first offence. 21 We received further evidence by way of affidavit for the purpose of re-sentence. It is unnecessary to go to the detail of it. As one would expect, the applicant's situation has strained his relationship with his family and his current placement has compromised his contact with his children. The sale of the south coast property had run into difficulties, but it seems that they have been resolved and payment of the amount outstanding to AGC can be made. He has experienced particular difficulties in prison, partly due to the fact that a significant part of his practice as a solicitor was in the field of criminal law. 22 Leaving out of account the applicant's pleas of guilty and his assistance, I consider that the global sentence appropriate to represent the totality of his criminality is imprisonment for five years. Because of the pleas of guilty and the assistance, I would reduce that term by forty percent to three years. At the time of sentence the applicant had expressed his willingness to provide further assistance to the authorities, although he had not entered into a formal undertaking to do so. It seems, in any event, that that further assistance is not likely to be required. That being so, for the purpose of s5DA of the Criminal Appeal Act, I would not assign any part of that reduction of sentence to future assistance. 23 In determining the global sentence and the discount to be applied to it, I am not unmindful of the need to fix sentences appropriate for each of the charges in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610. I would adopt the sentencing judge's approach of accumulating the sentences in respect of the second and third charges upon that in respect of the first, recognising that they represent discrete episodes of criminality. Like his Honour, I also find special circumstances.

Orders 24 I would propose that leave to appeal be granted, the appeal be allowed and the sentences passed in the District Court be quashed. In lieu, I would sentence the applicant as follows: On the first charge, a fixed term of imprisonment for six months, to date from 26 February 2004; On each of the second and third charges, imprisonment for two and a half years, with a non-parole period of twelve months, to date from 26 August 2004. I would direct the release of the applicant on parole on 25 August 2005. 25 BELL J: I agree with Hidden J.

24/05/2005 - To distinguish his Honour from her Honour J C Gibson DCJ. - Paragraph(s) -

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