Atherley v The State of Western Australia
[2017] WASCA 53
•23 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATHERLEY -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 53
CORAM: MARTIN CJ
BUSS P
MAZZA JA
HEARD: 18 OCTOBER 2016
DELIVERED : 23 MARCH 2017
FILE NO/S: CACR 104 of 2015
CACR 105 of 2015
BETWEEN: ROBERT CHARLES ATHERLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
Citation :THE STATE OF WESTERN AUSTRALIA -v- ATHERLEY [2015] WADC 45
File No :IND 365 of 2014
Catchwords:
Criminal law - Sentencing - Dishonesty offences - Fraud - Perjury - Totality principle - Offences committed over eight years involving more than $1.6 million
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Guardianship and Administration Act 1990 (WA)
Public Trustee Act 1903 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S A Gabriel & Mr C Biris
Respondent: Mr J C Whalley
Solicitors:
Appellant: Chris Biris, Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Brennan v The State of Western Australia [2010] WASCA 19
Caratti v The Queen (1984) 10 A Crim R 328
R v Hawkins (1989) 45 A Crim R 430
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Atherley [2015] WADC 45
The State of Western Australia v Chapman [2012] WASCA 203
MARTIN CJ:
Summary
Following a trial by judge alone Robert Charles Atherley (Mr Atherley) was convicted of two counts of stealing and one count of perjury. The charges arose out of Mr Atherley's management of the financial affairs of Ms Mary Taylor Eva, who died in August 2006. Mr Atherley had been Ms Eva's accountant from 1989 onwards, her enduring power of attorney from 1996 onwards, her legal guardian from 1999 onwards and the executor of her will from her death until late 2010, when he was removed from that position by the Supreme Court following a probate hearing. The trial judge found that Mr Atherley stole in excess of $1.62 million from Ms Eva both before and after her death by transferring funds from her account into his business account, his personal accounts and his wife's account.
Mr Atherley was sentenced by the trial judge to a total effective sentence of 7 years and 6 months imprisonment with eligibility for parole. Mr Atherley applies for leave to appeal against both his conviction and the sentence imposed. For the reasons which follow, Mr Atherley's application for leave to appeal against conviction and application for leave to appeal against sentence should both be refused, and the appeals against conviction and sentence dismissed.
The facts found by the trial judge
The trial judge's findings of fact are set out in his reasons for decision delivered on 29 April 2015.[1] These findings were expressly incorporated into his Honour's sentencing remarks on 27 May 2015.[2] The findings of the trial judge relevant to the appeals can be summarised as follows.
[1] The State of Western Australia v Atherley [2015] WADC 45 (trial judgment).
[2] ts 884.
From 1985 until 2000, Mr Atherley was the proprietor of an accounting business. In 1989, Mr Atherley commenced providing services as Ms Eva's accountant. He remained in this position until her death. In his capacity as her accountant Mr Atherley prepared and lodged annual tax returns for Ms Eva for the financial years ending 30 June 1999 to 30 June 2006 inclusive.[3]
[3] Trial judgment [156].
On 29 November 1996, Ms Eva appointed Mr Atherley as her enduring power of attorney pursuant to the Guardianship and Administration Act 1990 (WA). In 1999, Mr Atherley was appointed as Ms Eva's legal guardian pursuant to the Guardianship and Administration Act as a result of her dementia and consequent declining mental faculties. From this time onwards, Mr Atherley was the only person with authority to make transfers from Ms Eva's bank accounts.[4]
[4] Trial judgment [148].
From January 2000, Mr Atherley arranged live‑in carers for Ms Eva. He paid for Ms Eva's care and other expenses using funds from her accounts.
In 2000, Mr Atherley purchased an accounting practice in South Perth. He changed the name of the practice to 'Atherley's Accounting' and moved its premises to Osborne Park. Mr Atherley was at all material times the principal of the practice.
In August or September 2004, Mr Atherley established a financial planning business, Atherley's Financial Planning Services (AFPS), with a financial planner and adviser, Mr Donald McLaren. Whilst each practice had office suites in the same building, Atherley's Accounting and AFPS were operated independently of one another.[5]
[5] Trial judgment [122].
Ms Eva died on 17 August 2006.[6] Mr Atherley filed an application for a grant of probate in his capacity as executor of her will on 25 September 2006.[7] On 10 October 2006, Mr Atherley was granted probate.[8] The beneficiaries of Ms Eva's estate were not informed of their status as beneficiaries until May 2007.[9]
[6] Trial judgment [130].
[7] Trial judgment [132].
[8] Trial judgment [133].
[9] Trial judgment [9], [136].
In July 2008, the beneficiaries of Ms Eva's estate commenced proceedings in the Supreme Court of Western Australia,[10] challenging payments made by Mr Atherley from Ms Eva's estate in his capacity as executor (Supreme Court proceedings).[11] On 1 August 2008, the Supreme Court issued a notice to Mr Atherley requiring him to file and pass his accounts in relation to Ms Eva's estate.[12]
[10] PRO 3801 of 2006.
[11] Trial judgment [10], [140].
[12] Trial judgment [141].
Mr Atherley was first questioned by police in relation to his management of Ms Eva's financial affairs in March 2012, and again in January 2015.
The 'HandiSoft' system
At all material times the accounting records at Atherley's Accounting were maintained on a 'HandiSoft' accounting system. The HandiSoft system enabled work in progress (WIP) to be recorded on each client's account in six minute units. The system multiplied the time units by the relevant employee's hourly rate to calculate the value of the WIP.[13]
The impugned transactions prior to Ms Eva's death - count 1
[13] Trial judgment [12], [208].
The trial judge found that the amount annually transferred by Mr Atherley from Ms Eva's account to his own accounts increased as her health and mental faculties declined. During a police interview Mr Atherley stated that, apart from a gift, all money transferred from Ms Eva's account to his personal accounts was for fees incurred and work completed.[14] The trial judge accepted that Schedule 1 of Exhibit 1,[15] a spreadsheet entitled 'Transfers pre Eva's death', accurately summarised the amounts of money transferred from Ms Eva's accounts into accounts operated by Mr Atherley.[16]
[14] Trial judgment [278].
[15] Combined Blue and Green Appeal Book, pages 24 ‑ 30.
[16] Trial judgment [151], [288], [300].
The amounts transferred are contained in the table below.[17]
[17] I note that some of the figures reproduced by the trial judge in the trial judgment at [152] and [290] do not accurately reflect the figures contained in Schedule 1, Exhibit 1. The figures contained in Schedule 1, Exhibit 1 have been reproduced in this judgment.
Year Total amount transferred Number of transfers Number of invoices 1994 $1,080.00 1 1 1995 $1,125.00 1 1 1996 $0.00 0 0 1997 $1,000.00 1 1 1998 $1,740.00 2 2 1999 $7,266.90 4 4
2000 $29,094.00 3 3 2001 $33,927.75 6 6 2002 $115,056.00 19 12 2003 $297,954.90 33 5 2004 $374,755.00 32 2 2005 $521,210.00 62 0 2006 (to Ms Eva's death on 17 August 2006) $559,800.00 41 0 Total $1,944,009.55
Schedule 1, Exhibit 1 revealed 168 transactions from Ms Eva's accounts to Mr Atherley's accounts for which there were no invoices.[18] These transactions formed the basis for count 1 on the indictment, and totalled $1,369,275.00. That count alleged that
[b]etween 28 February 2002 and 16 August 2006 at Perth and elsewhere Robert Charles Atherley stole $1,369,275.00 the property of Mary Taylor Eva, and being the amount of a general deficiency.
Lawful transfers
[18] Trial judgment [300].
The trial judge found that Mr Atherley was legitimately entitled to transfer money from Ms Eva's account to pay for such things as her carers' wages and superannuation, utility bills and taxation liabilities. Payments of that kind and for those purposes were not included in the 165 impugned transfers.[19]
[19] Trial judgment [167].
The trial judge also found that Mr Atherley was entitled to payment of a reasonable sum for professional and guardianship services rendered to Ms Eva and her estate.
Further, the trial judge also found that Mr Atherley was gifted $250,000 by Ms Eva during her lifetime, and that he legitimately transferred $250,000 from her account to his personal account in instalments pursuant to that gift. Those transfers were not included in the impugned transfers.[20]
The false HandiSoft entries
[20] Trial judgment [166].
From 1994 to 2000, the WIP entries recorded on HandiSoft in respect of Ms Eva's account exactly matched the total amount invoiced and transferred from Ms Eva's account by Mr Atherley.[21]
[21] Trial judgment [150].
The trial judge found, in effect, that upon realising that his withdrawals from Ms Eva's account were going to be scrutinised in the Supreme Court proceedings, Mr Atherley accessed the HandiSoft program and entered false entries about work purportedly done on Ms Eva's account.
The portfolio reconstruction
A significant number of the false entries made in the HandiSoft program related to a 'portfolio reconstruction' Mr Atherley claimed to have performed in relation to Ms Eva's share portfolio from March 2006 to August 2006. The portfolio reconstruction allegedly involved Mr Atherley analysing each of the 49 companies in which Ms Eva held shares in order to check the accuracy of the 'cost base' of the shares that had previously been used for Ms Eva's capital gains tax assessments.[22]
[22] Trial judgment [14].
At trial, Mr Atherley testified that he had undertaken around 780 hours of work himself on the portfolio reconstruction,[23] with some 'minimal' assistance from other staff members.[24] According to Mr Atherley, approximately 900 hours of work were undertaken in relation to the reconstruction in total.[25] Mr Atherley was unable to provide any records pertaining to the reconstruction as all working documents were kept on the AFPS computer system and were lost in a computer crash and could not be recovered.[26] Accordingly, the only evidence that Mr Atherley had completed the work was his own evidence, which the trial judge rejected for reasons which he gave.[27]
Count 2
[23] ts 108.
[24] ts 341.
[25] Trial judgment [218] ‑ [219].
[26] Trial judgment [224].
[27] Trial judgment [224].
As I have noted, count 1 on the indictment was concerned with amounts allegedly stolen by Mr Atherley prior to the death of Ms Eva. Count 2 was concerned with amounts allegedly stolen from her estate following her death. It asserted that
[b]etween 17 August 2006 and 17 July 2010 at Perth and elsewhere Robert Charles Atherley stole $318,110 the property of Robert Charles Atherley as executor of the Estate of Mary Taylor Eva, and being the amount of a general deficiency.
The trial judge found, in effect, that once Mr Atherley ceased making false retrospective WIP entries on Ms Eva's HandiSoft account, he commenced using the HandiSoft system to manually generate a series of false invoices which totalled the approximate amount he took from Ms Eva's account following her death.[28] The trial judge accepted that it was possible, at any time, to manually generate a HandiSoft invoice without linking it to a WIP entry,[29] and that an invoice could be generated retrospectively for any amount entered by the person creating the invoice.[30] There was some difficulty for a user who wanted to create an invoice for an exact amount, as the HandiSoft system automatically calculated and added GST,[31] and this explained the discrepancies between a number of the false invoices generated by Mr Atherley, and the amounts transferred.[32]
[28] Trial judgment [15].
[29] Trial judgment [267].
[30] Trial judgment [268].
[31] Trial judgment [268].
[32] Trial judgment [398].
The trial judge rejected Mr Atherley's evidence to the effect that he was extensively involved in the portfolio reconstruction for reasons which he gave. He found that Mr Atherley was not entitled to take funds from the bank accounts which he maintained on behalf of Ms Eva's estate and which were the subject of count 2, apart from an amount of $5,185 in respect of work done by an employee.
Count 3
Count 3 alleged that
[b]etween 2 December 2009 and 5 February 2010 at Perth Robert Charles Atherley, in a judicial proceeding, namely Bassett v Atherley in the Supreme Court of Western Australia, having been duly sworn, knowingly gave false testimony to the effect that he performed accounting and financial planning work that he did not so perform.
And that the false testimony was material to a question then pending in the judicial proceeding.
Mr Atherley gave both affidavit and oral evidence in the Supreme Court proceedings brought by the beneficiaries of Ms Eva's estate. In his affidavit evidence, Mr Atherley provided a copy of all invoices pertaining to the management of Ms Eva's account, as well as a WIP spreadsheet. In his oral testimony, Mr Atherley stated that he had compiled the computerised accounting records relating to Ms Eva's account to create the WIP spreadsheet, and that it represented the work he had done on behalf of Ms Eva and her estate. A substantial share of the work recorded on the WIP spreadsheet related to the portfolio reconstruction claimed to have been undertaken by Mr Atherley with minimal assistance from other members of the accounting practice.[33]
[33] Trial judgment [17] ‑ [20].
The trial judge found that Mr Atherley's evidence to the effect that the invoices were 'true to the best of his knowledge, information and belief' was false,[34] and that his evidence to the effect that the WIP spreadsheet was 'true to the best of his knowledge, information and belief' was also false.[35] The trial judge also found that Mr Atherley's evidence as to the provenance of the accounting documentation to which he referred was false, and that his evidence to the effect that he performed extensive accounting and financial planning work relating to the portfolio reconstruction was also false.
The trial judge's conclusions
[34] Trial judgment [397].
[35] Trial judgment [399].
In relation to count 1, after allowing for amounts in respect of which the trial judge found Mr Atherley had an entitlement to payment, he concluded beyond reasonable doubt that Mr Atherley stole $1,309,070.50 from Ms Eva's account, being the amount of a general deficiency. In relation to count 2, after allowing for the amount of $5,185 in respect of work done by an employee, the trial judge was satisfied beyond reasonable doubt that Mr Atherley stole $312,925 from the bank account maintained on behalf of Ms Eva's estate, being the amount of a general deficiency. In relation to count 3, the trial judge found beyond reasonable doubt that in the judicial proceedings the subject of that count Mr Atherley knowingly gave false testimony to the effect that he performed accounting and financial planning work that he did not in fact perform, and that the false testimony was material to a question then pending in the judicial proceeding. Accordingly, the trial judge entered convictions on all counts.
The grounds of appeal against conviction
There are four grounds of appeal against conviction. I will deal with each in turn.
Ground 1
Ground 1 is concerned only with count 1 on the indictment. It asserts that there was a miscarriage of justice because the count was 'subject to issues of patent duplicity and the trial judge should have required the prosecution to make an election'. The substance of the ground is an assertion to the effect that the 'duplicity' arose from the reliance upon a general deficiency arising from multiple transactions when, it is asserted, a separate charge of stealing should have been brought in respect of each impugned transaction.[36]
[36] See, for example, appellant's outline of submissions as to appeal against conviction [39] ‑ [40], [46], (WAB pages 16 ‑ 18).
No oral submissions were advanced in support of this ground and the written submissions pertaining to it are, at best, obscure. In those submissions it is acknowledged that count 1 was framed in reliance upon the provision in cl 8(3) of sch 1 of the Criminal Procedure Act 2004 (WA), which provides:
If it is alleged that on more than one occasion over a period a person stole property, the person may be charged with one offence of stealing all of the property as a general deficiency comprised of various quantities of various property stolen over the period.
The written submissions appear to contend that the power conferred by this provision should not have been exercised because it resulted in unfairness to Mr Atherley. The source of the asserted unfairness is not at all clear, but appears to derive from what is said to be 'the prejudicial effect of the total amount involved, the number of disputed transactions and the period over which the alleged offending supposedly arose'.[37] However, there is no basis upon which it can be credibly asserted that the course taken in relation to count 1 was somehow more prejudicial to Mr Atherley than bringing 165 separate charges of stealing against him.
[37] Appellant's written submission [46].
Further, the approach taken by the trial judge is entirely consistent with s 44(2) of the Evidence Act 1906 (WA) which relevantly provides:
On the trial of a person charged with [stealing money], it shall not be necessary to prove the stealing ... of any specific sum of money, if, on examination of the books of account or entries kept or made by him, ... or by any other evidence, there is proof of a general deficiency and if the jury are satisfied that the accused ... stole the deficient money or any part of it.
The trial judge found that Mr Atherley was entitled to transfer certain amounts to himself, but had no entitlement to the balance of the funds transferred, which were properly characterised as, and found to be, a 'general deficiency'.[38]
[38] See Caratti v The Queen (1984) 10 A Crim R 328, 339 (Burt CJ).
Ground 1 is without substance.
Ground 2
Ground 2 of the appeal against conviction is concerned only with count 2 on the indictment, and asserts that Mr Atherley's conviction 'involved a mistake of law' because the money stolen was Mr Atherley's property which he could not steal from himself.
No oral submissions were advanced in support of this ground. The only portion of the written submissions which appears to address this ground is, in effect, a repetition of the ground itself,[39] and a reference to s 9 of the Public Trustee Act 1903 (WA) which has the effect that, upon a grant of probate, the estate of a deceased person vests retrospectively in the executor as from the date of death.
[39] Appellant's written submissions [53].
Clearly the effect of that section is to confer title to property upon an executor in that capacity. An executor's interest in the property of the estate is of course subject to the executor's obligation to administer that property for the benefit of the beneficiaries. Mr Atherley was not a beneficiary and by paying the monies the subject of count 2 to himself, he fraudulently converted those monies to his own use.
Section 376 of the Criminal Code (WA) relevantly provides:
When any person takes or converts anything capable of being stolen, under such circumstances as would otherwise amount to stealing, it is immaterial that he himself has a special property or interest therein, or that he himself is the owner of the thing taken or converted subject to some special property or interest of some other person therein.
Similarly, s 371(4) of the Code relevantly provides:
In the case of conversion, it is immaterial whether the property converted is ... at the time of the conversion in the possession, control or management of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.
Each of these provisions applies to Mr Atherley's fraudulent conversion of the funds over which he had control and to which he had title in his capacity as executor and have the effect that he was properly convicted of count 2 on the indictment on the basis of the facts found by the trial judge.
Ground 2 is without substance.
Ground 3
Ground 3 as formulated has two components. The second component was expressly abandoned by counsel in the course of oral argument and need not be mentioned. The remaining component of the ground involves an assertion, which, as explained by counsel in the course of oral argument, is essentially to the effect that Mr Atherley could not be convicted of count 3 if he had done any work at all on behalf of Ms Eva or her estate, and there was evidence to the effect that he had done at least some such work.
That proposition is misconceived. The trial judge found Mr Atherley guilty of count 3 because he found that the evidence which he gave in the course of the Supreme Court proceedings with respect to the extent of the work which he had undertaken on behalf of Ms Eva and her estate was false. That finding cannot be impugned by the proposition that there was evidence to the effect that Mr Atherley had done some but not all of the work to which he testified.
Ground 3 is without substance.
Ground 4
Ground 4 asserts that the verdicts in relation to each count were unsafe and unsatisfactory because it was not open to the court to be satisfied beyond reasonable doubt that the accused was guilty of each alleged offence. In the course of oral argument counsel for Mr Atherley abandoned the ground insofar as it related to counts 1 and 2, and in relation to count 3, confined the argument to the proposition advanced in support of ground 3. As that proposition is without substance, ground 4 is also without substance.
Conclusion in relation to the appeal against conviction
Each of the grounds of appeal against conviction is without substance. Leave to appeal should be refused in respect of each ground and the appeal against conviction dismissed.
The appeal against sentence
The trial judge imposed a total effective sentence of 7 years and 6 months imprisonment in respect of the three counts of which Mr Atherley was convicted. That sentence was made up of a sentence of 4 years imprisonment in respect of count 1,[40] 2 years and 6 months imprisonment in respect of count 2,[41] and a period of 12 months imprisonment on count 3,[42] with all sentences to be served cumulatively. In the course of his observations, the trial judge noted that he would have imposed a sentence of imprisonment of 3 years in respect of count 3 (perjury), but reduced that term to a period of 1 year for reasons of totality.
[40] Stealing $1,309,070.50 from Ms Eva.
[41] Stealing $312,925 from Ms Eva's estate.
[42] Perjury.
The maximum term of imprisonment available in respect of counts 1 and 2 was a term of 7 years' imprisonment, and a term of 14 years imprisonment in respect of count 3.
The grounds of appeal
There is one ground of appeal, which is to the effect that the total effective sentence infringed the totality principle. Four particulars are given in support of that ground. One of those particulars was expressly abandoned in the course of oral argument, and counsel for Mr Atherley confirmed that another of the particulars replicated the argument advanced in support of ground 3 of the appeal against conviction, which I have concluded lacks substance for the reasons already given. Another particular suggests that, contrary to the formulation of the ground, express error manifest in the observations made at the time of sentence was being asserted.[43] However, counsel for the appellant disavowed that contention and submitted that the particular should be construed as an aspect of the assertion of implied error. The final particular repeats, in effect, the assertion of an infringement of the totality principle. In the end, the particulars provide little indication of the substance of the ground.
[43] With respect to the trial judge's reliance upon general deterrence.
The written submissions provided on behalf of the appellant are not specifically directed to any of the particulars given in support of the ground and, like the submissions provided in support of the appeal against conviction are, at best, obscure. In the course of oral argument, counsel for Mr Atherley did however confirm that it was not contended that error was evident in respect of any of the specific sentences imposed in respect of each count, which were accepted to be within the range of the sound exercise of the sentencing discretion. So, the ground is limited to the cumulative effect of those individual sentences.
Apart from the various concessions to which I have referred, and the assertion that both limbs of the totality principle were relied upon,[44] counsel for the appellant did not advance any substantive oral argument in support of the appeal against sentence.
[44] As to which see Roffey v The State of Western Australia[2007] WASCA 246 [24] ‑ [26].
Doing my best to deduce what remains in contention in relation to the appeal against sentence, it seems that the appeal involves an assertion that the total effective sentence of 7 years and 6 months' imprisonment is disproportionate to the total criminality involved or, alternatively, will have a crushing effect upon Mr Atherley.
Totality principle - first limb
Dealing firstly with the contention that the total effective sentence imposed is disproportionate to the overall criminality involved, it is worthy of note that the trial judge found, appropriately having regard to the findings of fact which he had made, that there was a high level of criminality involved in Mr Atherley's offending behaviour. The trial judge observed that Mr Atherley engaged in prolonged and significant dishonesty, abusing a position of trust, compounded by an unsuccessful attempt to cover his tracks by false documents and perjury, the perjury involving both false affidavits and false oral testimony given on two separate occasions.
The conduct which resulted in the appellant's conviction on count 1 occurred over the course of four years and involved 168 separate dishonest transactions undertaken while Mr Atherley was the accountant, legal guardian and enduring power of attorney of Ms Eva subject to a fiduciary, professional and moral obligation to protect the interests of his client, who he knew to be incapable of protecting her own interests. The contention contained in the written submissions to the effect that the court cannot take account of the prolonged and repeated instances of dishonest conduct which together comprised the offence embodied in count 1, because the count was laid by reference to a general deficiency, is as misconceived as the corresponding propositions advanced in support of the appeal against conviction. Where a count of stealing is brought in respect of a general deficiency arising from a course of conduct, as is expressly authorised by the statutory provisions to which I have already referred, it is both necessary and appropriate for the court to take account of the precise conduct which gave rise to the offence when imposing sentence. It follows that the trial judge, and this court, can quite properly take into account the fact that Mr Atherley's offending was not an isolated lapse of judgment or impulsive but was deliberate, methodical, planned, systematic and prolonged. The court can also take into account the fact that the stealing increased exponentially in the latter part of Ms Eva's lifetime as her mental state declined and her vulnerability to Mr Atherley's abuse of trust increased. In the circumstances of this case, general deterrence was a relevant and significant consideration, and the suggestion to the contrary in the appellant's written submissions is without substance.
It is also worthy of note that the amount of the deficiency the subject of count 1 was significant, that Mr Atherley's offending appears to have been motivated entirely by greed, that the money was used for his own personal benefit, and that the money has not been repaid to any extent.
Similar observations may be made in respect of the conduct which gave rise to Mr Atherley's conviction on count 2. Although the amount involved is less than the deficiency the subject of count 1, it is nevertheless a significant amount. Although Ms Eva had passed away before the conduct giving rise to count 2 was committed, Mr Atherley abused his position as executor of Ms Eva's estate and deliberately, systematically and methodically took advantage of that position to steal from vulnerable beneficiaries who were unaware of his actions.
The conduct giving rise to Mr Atherley's conviction on count 3 is also properly regarded as manifesting a high level of criminality. False documents in the form of invoices and a WIP spreadsheet were fabricated and annexed to affidavits which were sworn and filed in an attempt to deceive the court and conceal Mr Atherley's prolonged and systematic abuse of the positions of trust which he had held. The unsuccessful attempt to deceive the court was also protracted - the false affidavit was sworn on 5 May 2009, the first portion of false oral testimony was given on 3 December 2009, and the second portion of false oral testimony was given on 3 February 2010. Further, the perjury was not directed to some peripheral issue, but was central to the issue to which the proceedings were directed - namely, Mr Atherley's entitlement to the professional fees for which he had extracted payment.
Mr Atherley's criminal conduct had a significant adverse effect upon the beneficiaries of Ms Eva's estate, by depriving them of more than $1.6 million, and causing them to instigate the legal proceedings which resulted in his removal as executor of the estate, and which triggered the investigations that resulted in the charges being brought against Mr Atherley.
It is difficult to identify any significant mitigating factors. The weight to be given to the fact that Mr Atherley had not previously been convicted of any offence is significantly undermined by the fact that he engaged in persistent and serious criminal conduct between 2002 and 2010, which he successfully concealed until the latter part of that period. Further and in any case, when a professional person uses their reputation and apparent integrity to obtain a position of trust which is then abused, it is difficult to give any significant weight to the previous good behaviour that gave rise to the reputation which became the springboard for the offending conduct.[45]
[45] See for example R v Hawkins (1989) 45 A Crim R 430, 438.
Mr Atherley is not entitled to any discount for youth or inexperience. Having exercised his right to contest the charges brought against him, he cannot claim any entitlement to a discount for a plea of guilty, and there is no evidence or finding of any remorse or contrition, or of any attempt to compensate the beneficiaries of the estate for their loss.
However, the trial judge specifically identified two mitigating factors which he took into account, namely:
(a)the appellant's cooperation with police, including participation in interviews in which limited admissions were made; and
(b)the appellant's cooperation with the prosecution during the trial as a result of which the proceedings were abbreviated somewhat.
Those factors are appropriately taken into account but are, in the overall circumstances of this case, of limited significance.
In the written submissions advanced in support of this ground, attention is drawn to the fact that the cumulative effect of the sentences imposed in respect of counts 1 and 2 was a term of imprisonment of 6 years and 6 months, which is only six months less than the maximum term which could have been imposed if Ms Eva had not passed away and the conduct the subject of counts 1 and 2 had been made the subject of one count. Inferentially it is contended that this gives rise to a doubt with respect to the proportionality of the total effective sentence of 7 years and 6 months.
There are a number of reasons why this proposition must be rejected. First, counts 1 and 2 on the indictment were quite properly brought as separate counts. The money was stolen from different owners on different occasions over different periods - the conduct the subject of count 1 commencing approximately eight years before the conduct the subject of count 2 concluded. Second, it is difficult to reconcile this submission with the express concession to the effect that the sentences imposed on each count were within the range of a sound exercise of the sentencing discretion. Third, the question raised by the only ground of appeal is not whether the sentence of 6 years and 6 months imprisonment which was the cumulative effect of the sentences imposed on counts 1 and 2 was manifestly excessive but, rather, whether the sentence of 7 years and 6 months imprisonment which was the effect of the sentences imposed on all counts is manifestly excessive. That question necessarily requires consideration of the criminality involved in count 3 which is, for the reasons I have given, significant.
For the reasons I have given, there is nothing in the circumstances of the offences committed by Mr Atherley, or in his personal circumstances, or any mitigating factors which would suggest that the accumulation of the sentences imposed on each individual count gave rise to a total effective sentence which was disproportionate to the overall criminality involved.
Further, when account is taken of the standards of sentencing customarily imposed in cases of this kind, as revealed by comparable cases, it is clear that the total effective sentence imposed is within the range of a sound exercise of the sentencing discretion and bears a proper and proportional relationship to the criminality involved.
In Brennan v The State of Western Australia,[46] a solicitor was convicted of stealing a total of $896,787, made up of $767,250 which was stolen while the client was alive, and $129,542 stolen after the client's death. The defalcation was committed through 70 individual transactions which occurred over a period of approximately six years. The victim suffered from dementia and impaired mental acuity and was dependent upon the solicitor taking proper care of her financial affairs. The offender pleaded guilty at an early opportunity and received a discount of approximately 25% for that plea. A total effective sentence of 7 years and 6 months imprisonment was not considered by the Court of Appeal to infringe the totality principle.
[46] Brennan v The State of Western Australia [2010] WASCA 19.
When account is taken of the impact of the early plea of guilty in Brennan, and the criminality involved in the offence of perjury in this case, the decision of the Court of Appeal in Brennan strongly suggests that the total effective sentence imposed in this case does not manifest error.
The same conclusion follows from a consideration of The State of Western Australia v Chapman,[47] in which a State appeal against sentence was upheld, and the offender, who was a high level public servant who had embezzled a total of $1.7 million over a period of approximately eight years, was sentenced to a term of 8 years imprisonment following his conviction after trial in which he displayed an absence of any remorse.
[47] The State of Western Australia v Chapman [2012] WASCA 203.
For these reasons the contention that the total effective sentence imposed infringes the first limb of the totality principle because it is disproportionate to the overall criminality involved is without substance.
Totality principle - second limb
As I have noted, counsel for the appellant maintained reliance upon both limbs of the totality principle but proffered little or no argument in support of the invocation of the second limb of the principle other than a fleeting reference to Mr Atherley's age. Mr Atherley was 66 at the time of sentence in 2015. No evidence was adduced which would suggest that his health or life expectancy is such that he could not expect to enjoy a reasonable period of liberty within the community following the completion of the sentences imposed. It must also be borne in mind that his offending conduct commenced in 2002, when he was 53 years of age, and may well have come to light earlier but for the elaborate deceptions which he perpetuated and which delayed his prosecution and sentence.
In these circumstances there is nothing to suggest that the total effective sentence imposed would have a crushing effect upon Mr Atherley. This aspect of the ground of appeal is also without substance.
Sentencing appeal - conclusion
The appeal against sentence is without substance. The application for leave to appeal, and the appeal, should be dismissed.
General conclusion
For these reasons the application for leave to appeal against conviction and the application for leave to appeal against sentence and each appeal should be dismissed.
BUSS P: I agree with Martin CJ.
MAZZA JA: I agree with Martin CJ.
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