R v John [2001] VSC 416

Supreme Court of Victoria|2001-10-18|Before: Bongiorno J

Criminal Law - Sentence - Solicitor's defalcation - plea of guilty - restriction - wholly suspended sentence.

Jeffrey Jacobs John, you were born on 14 April 1962 in Malaysia, but eventually received your tertiary education in this country. Between the years 1996 and 1999 you committed ten offences of dishonesty involving just over $200,000; money which belonged to your clients in your capacity as a solicitor. The total defalcation was something over $100,000. You stole from your trust account and then falsified the records of that account and other records in order to attempt to cover your depredations.

In respect of one transaction you engaged in false pretences to induce a finance company to advance you money for the purchase of a sports car.

You have pleaded guilty to all 10 offences. Indeed, you indicated your intention to do so at the earliest possible time.

You have made full restitution; the receiver of your practice being satisfied that all outstanding claims against you have been met and that the costs of the receivership have been met. I am informed by your counsel (and it would appear to be correct) that you borrowed money to enable these payments to be made.

You were admitted as a solicitor in 1988. By 1990, after working hard as an employee in a practice on the Mornington Peninsula you were in a position to open an office on your own account. You did this in Montmorency. In 1996 you opened a second office in Eltham. I have been told that your workload in respect of those two offices was extremely heavy, although it would appear your turnover in respect of fees was not commensurate with the work you were doing and, in particular, with the hours you worked. It appears that not long after you opened the office in Eltham you stole the first amount of money from your trust account, being that which belonged to Teresa Carroll and John Agririadis.

You continued this criminal activity for some three years, until the Law Institute auditors discovered your defalcations. Receivership and the cancellation of your practising certificate soon followed.

Your counsel has described your life in terms which suggest that by the time you were detected, at least, your life was disintegrating. It is said that you were indeed suicidal. It has also been said that since that time you have attempted to get your life back on track to the extent that you have taken up further tertiary studies and have now engaged in a business of inventory control with a business associate, which business is claimed to have a bright future although, at this stage, its success is more a matter of hope than of actual achievement. It is significant that in this business you will not be handling the money of other people.

The disciplinary tribunal to which you are subject eventually disqualified you from obtaining a full practising certificate for some 15 years and from obtaining an employee certificate for five years. But it is not insignificant that the Honourable Richard Fullagar Q.C., the Chairman of that Tribunal, did not refer you to this court for the purpose of your being struck off the roll.

I have heard evidence from a number of witnesses,

Mr Rudy Stjepanocic, the man with whom you are now conducting the inventory control business, Mr Stephen Smirlis, Mr Peter Mazzei, Dr Janet Hall and in particular your wife from whom you are separated but not divorced.

I have read the bundle of references tendered on your behalf. Even allowing for the hyperbole which is a common feature of such references, they are impressive. It would seem that in recent times you have re-engaged an interest in Christian church affairs which has led you in one way or another to be of assistance to a single mother and her children, of similar ethnic background to yourself.

The references to which I have referred speak of your remorse, as does the plea of guilty which you have entered.

I have referred to your wife. You married her in 1992 and have two boys. You were separated in 1999 but it is to your considerable credit that your wife was willing and able to give evidence on your behalf today; including evidence to the effect that you financially support her and the boys to a considerable extent.

It is clear that criminal breach of the trust which ought to be able to be imposed in a solicitor is deserving of condign punishment. The profession which you entered in 1988 is one which is used to handling other people's money. Not only, of course, does it it handle their money, but it handles their affairs, their confidences, and those aspects of their lives when they are sometimes at their lowest ebb. It is not insignificant that in some of the cases in which you stole money matrimonial disputes had placed your clients in positions of jeopardy, both financially and emotionally. To steal from them was heinous indeed.

The principal purpose of sentencing in respect of solicitors' depredations on their trust accounts is general deterrence, that is to say the Court expressing its condemnation of such behaviour for the purpose of ensuring that every other solicitor in the State is aware that the normal punishment for interfering with one's trust account immediate incarceration. The other aims of sentencing, namely specific deterrence, rehabilitation, denunciation of the offences and community protection, take a somewhat lesser role, particularly in your case.

I am satisfied from the evidence of Dr Hall that you have some psychological infirmity, although it is difficult to see the label put on it as necessarily explaining any more than the disorganized situation in which you found yourself, particularly after you had been found out.

I am satisfied that you will not offend again. Indeed, having regard to these convictions which will follow your plea of guilty you may never be given the opportunity to do so as a solicitor in this State.

As for rehabilitation, you have largely achieved this yourself by means of your entry into the business with Mr Stjepanocic. It is to be hoped that you will continue in that regard.

The Court denounces the conduct to which you have pleaded guilty and does so in the strongest terms.

So far as the protection of the community is concerned the disciplinary tribunal to which you are subject has already made orders which will ensure that the community is protected from you at least for the foreseeable future, perhaps forever.

It therefore appears to me, after anxious consideration, that it is not necessary in this case to impose a term of imprisonment which requires immediate incarceration. The offences, however, do require gaol sentences and you will be convicted and sentenced to be imprisoned.

You will be convicted on each of the ten counts to which you have pleaded guilty.

On Count 1, you are sentenced to be imprisoned for one year. On Count 2, you are sentenced to be imprisoned for two years. On Count 3, you are sentenced to be imprisoned for three years. On Count 4, you are sentenced to be imprisoned for one year. On Count 5, you are sentenced to be imprisoned for three years. On Count 6, you are sentenced to be imprisoned for three years. On Count 7, you are sentenced to be imprisoned for one year. On Count 8, you are sentenced to be imprisoned for three years. On Count 9, you are sentenced to be imprisoned for one year. On Count 10, you are sentenced to be imprisoned for one year.

I direct that all those sentences be served concurrently and that the minimum term fixed before you would be eligible for parole would be one year and eight months.

I am prepared to wholly suspend those sentences. Before doing so I must explain to you the purpose and effect of the order I will make and the consequences that may follow if you commit any other offence punishable by imprisonment either in or outside Victoria during the operational period of the sentence.

The purpose of the order is, as I have already explained, to effect the sentencing principles required by law in this State. The effect of the order is that you will be subject to a suspended gaol sentence for three years. The consequences that will follow in the event that you commit any offence punishable by imprisonment during the next three years is that you may be required to serve the whole of that period, or at least the non-parole period.

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Judgment (28 paragraphs)

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