Brennan v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRENNAN -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 19

CORAM: OWEN JA
WHEELER JA
NEWNES JA

HEARD: 2 FEBRUARY 2010

DELIVERED : 15 FEBRUARY 2010

FILE NO/S: CACR 58 of 2009

BETWEEN: DAMIEN GERARD BRENNAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
File No  :INS 128 of 2008

Catchwords:

Criminal law and procedure - Sentencing - Solicitor stealing funds belonging to a client - Multiple offences occurring over a long period and involving a large amount of money - 'One transaction' principle and totality - Sentence of 7 years 6 months not disturbed

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: In person
Respondent: Mr J A Scholz

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Hladin v The State of Western Australia [2005] WASCA 50
Jarvis v The Queen (1993) 20 WAR 201
Royer v The State of Western Australia [2009] WASCA 139

OWEN JA: The appellant was convicted on his own plea of 70 counts of stealing and one count of attempting to gain a benefit by deceit. He was sentenced to immediate imprisonment for a total of 7 years and 6 months. This is an application for leave to appeal, and the substantive appeal, against that sentence.

Background

The appellant was a legal practitioner in the Busselton and Margaret River areas. Jozef Kopec (the deceased) was a Polish immigrant who settled in the region after World War II and owned a farm. He never married, had few relatives in Australia and lived by himself in primitive conditions on the farm. As time passed his physical and mental health deteriorated and he was introduced to the appellant as someone who could look after his affairs. In 2000 the deceased executed an enduring power of attorney in favour of the appellant. Thereafter the appellant managed the deceased's affairs, including collecting rent from investment properties, selling the deceased's farm and paying his bills.
While he was managing the deceased's affairs the appellant regularly stole substantial sums of money from the deceased's account. The deceased died on 13 February 2006 and no will was located. The appellant did not notify the banks and other institutions of the death and continued to operate the deceased's accounts under the power of attorney. He continued to steal money from the accounts. The total sum stolen over the period was almost $900,000.
Complaints were made to the Legal Practitioners' Complaints Committee about the appellant's handling of the deceased's affairs. On 30 May 2007 representatives of the Committee attended at the appellant's offices and conducted a short preliminary investigation. On the following day the appellant was suspended from practice and a supervising solicitor was appointed. Also on 30 May 2007 the appellant instructed a stock broker to sell a parcel of shares belonging to the deceased's estate with a value of about $74,000. The shares were sold but by the time the cheque arrived at the appellant's practice the supervising solicitor was in place and the appellant was denied access to the funds.
The appellant was first spoken to by police on 22 June 2007 but declined to be interviewed in relation to the alleged offences and, it seems, he has never been formally interviewed. Eventually he was charged on indictment with 102 counts of stealing and one count of attempting to obtain a benefit by deceit. He pleaded guilty to 70 counts of stealing and to the attempt to gain a benefit by deceit and the State accepted the plea in full satisfaction of the indictment. On 29 April 2009 he was sentenced to imprisonment for a total of 7 years and 6 months.

Facts

The appellant was, at the time of the offending, practising as a solicitor in Busselton and Margaret River. He was initially in a partnership but from May 2002 he practiced as a sole practitioner. By 2001 the appellant was in financial difficulties due to, among other things, the dissolution of his legal partnership following the death of his partner. He had borrowed money from a local farmer. He was committed to a property which he part owned together with his brother but with whom he had fallen out.
In the late 1990s the deceased's farming neighbours became concerned that the deceased was suffering from dementia and had reported the fact to his accountant. They felt that the deceased needed someone to manage his affairs. The accountant in turn contacted the appellant, who told him he had 'looked after other people's affairs'. The deceased agreed to appoint the appellant for this purpose. On 31 July 2000 the deceased executed an enduring power of attorney appointing the appellant as his attorney under s 104 of the Guardianship and Administration Act 1990 (WA). The appellant accepted the appointment and thus gained significant control over the deceased's assets and money.
After the appointment the appellant conducted and managed the deceased's affairs. In the period 2001 to 2004 the deceased continued to live on his farm and was regularly assisted in his care by Silver Chain employees. In October 2002 the appellant arranged the sale of the deceased's farm subject to a condition that the deceased reside rent-free in his caravan on the property until his death. However, the deceased's condition continued to deteriorate and in September 2004 he was moved to high‑care dementia‑specific accommodation in Bunbury. He died there on 13 February 2006 of myocardial infarction with a contributory cause of dementia. No will was located and at the time the offences came to light no application for probate or letters of administration had been made. Under s 9 of the Public Trustee Act 1941 (WA) the deceased's real and personal estate vested in the Public Trustee on his death.
From July 2001 until the deceased's death the appellant regularly paid bills incurred by the deceased, or on his behalf from the deceased's moneys, which were held in the appellant's trust account. The appellant received professional costs totalling $71,349 in the period August 2001 to December 2006. After the deceased's death various funeral expenses were also paid out of this account.
While the deceased was alive the appellant managed the deceased's affairs but, in parallel with the legitimate performance of his authority as attorney, he regularly stole substantial sums of money from the deceased's account. The offending conduct continued after the date of death. I have set in a schedule to these reasons a table containing details of the 71 counts of which the appellant was convicted. The table includes the dollar amount referable to each count and the date on which the offence occurred. It was accepted for the purposes of sentencing that the offences fell into three chronological categories.
1.All counts up to and including count 92 are stealing charges committed in the period 17 August 2001 to 10 February 2006, that is, while the deceased was still alive. They therefore relate to property of the deceased. There are 60 charges in this category and the amount involved was $767,245.
2.Counts 93 to 102 are all stealing charges committed in the period from 12 April 2006 to 3 May 2007, that is, after the date of death. They therefore relate to property of the Public Trustee. There are 10 charges in this category and the amount involved was $129,542.
3.The last charge (count 103) was an attempt to gain a benefit by deceit that occurred on 30 May 2007. It related to shares in Wesfarmers Ltd in the deceased's name valued at $73,790.
On 17 August 2001 the appellant drew a cheque for $125,000 from the deceased's bank account and paid it into his own account. From that date until 3 May 2007 he wrote cheques on the deceased's account on 70 separate occasions to the total sum of $896,787.30. The moneys were either paid into the appellant's own personal bank account, personal credit card accounts, or used to pay debts owing by him or by an entity with which he was associated. The money was used to pay off the appellant's credit card, personal debts and loans, children's school fees, catering for private functions, home improvements and interstate holiday travel and accommodation, all for his own benefit. It is sufficient for the purposes of this appeal to limit description of the individual offences to this level of detail.
At the time of writing the cheques on the deceased's account, the appellant's bank balances were either very low or in debit. For example, when the cheque for $125,000 was written on 17 August 2001 (the first offence) the appellant's account was in credit to the tune of $70. The transfer of these moneys into the appellant's accounts enabled him to make payments from his personal accounts that he would not otherwise have been able to make. It appears that throughout the period the appellant was reliant on access to the deceased's funds to keep afloat.
On 17 February 2006 (after the deceased's death) the appellant met with two of the deceased's nieces who resided in Perth. They were the deceased's only kin living in Australia, although he had other relatives in Poland and elsewhere. He asked them what they wanted done with their uncle's 'meagre possessions'. The nieces said the appellant left quickly before they could ask him any questions about the estate, or who its executor was. They had been told by the deceased that he had a will which was left in the bank with all his legal documents. On 20 April 2006 the nieces met with the appellant again. He told them that the deceased had not left a will but that he (the appellant) would make application to fulfil their uncle's wishes by making his sister in America and his two nieces the beneficiaries of his estate. A short time later he gave them some information about properties owned by the deceased and also provided a list of family members that had been delivered to him during a 2004 visit by Polish relatives. The appellant undertook to the nieces to continue the search for a will and to contact them again when he had done so. However, the appellant made no further contact with either niece. He did not advise them of the existence of the deceased's bank account or that he had (by April 2006) withdrawn almost $800,000 from it for his own benefit.
The appellant did not inform the deceased's bank of the deceased's death or of the termination of his legal capacity to act as attorney. Rent from the deceased's properties continued to be paid into the deceased's bank account and provided the appellant with a continuing source of funds to access for his own use. Nor did the appellant contact the Public Trustee about the deceased's estate. In January 2007 he took advice from a barrister about the process for applying for letters of administration. But he did not act on the advice and took no steps to obtain letters of administration.
In May 2007 the deceased's nieces made a complaint against the appellant to the Legal Practitioners' Complaints Committee (the Committee). As a result of the complaint the Committee investigated the deceased's assets and at around 11.30 am on 30 May 2007, Committee staff conducted an unannounced inspection of the appellant's records at his legal practice in Busselton. During this visit the staff served the appellant with a summons pursuant to s 198 of the Legal Practice Act 2003 (WA) to produce records.
Committee staff also queried the appellant regarding the deceased's estate. The appellant told them that he had been in communication with relatives in Poland and the United States and had not been in contact with the nieces because they had no entitlement to share in the estate. The appellant was asked about the assets in the deceased's estate and he advised the Committee officers that there were some properties being leased out, several bank accounts with limited money in them, no will and no beneficiaries in Western Australia. Nothing was disclosed in relation to the $896,787 the appellant had by then withdrawn from the deceased's account for his own use. The appellant was asked about the sale of property as attorney to the value of $1.9 million and the subsequent acquisition of other real estate on the deceased's behalf to the value of $600,000. The appellant could not account for the balance of funds amounting to $1.3 million.
The appellant then left his office without advising the staff of his intention to do so. He was telephoned later that same day (30 May 2007) by one of the staff with questions and a requirement that he relinquish to her the chequebook to the deceased's account. The appellant advised that he did not intend to return to his office and, on legal advice, would say nothing further. In a subsequent telephone conversation with the staff on the same day he again declined to provide the chequebook. The chequebook has never been recovered, or provided to police or the Committee.
Count 103 in the indictment relates to an act done by the appellant on the same day as the visit by the Committee staff (30 May 2007). By this time virtually all of the money in the deceased's bank account had been exhausted and the only readily realisable assets were shares in Wesfarmers Ltd in the deceased's name. The appellant attended the offices of a stockbroker in Busselton and instructed the broker to sell 2000 Wesfarmers Ltd shares. The stockbroker checked the file and noticed that the appellant had enduring power of attorney over the deceased's affairs. He asked the appellant if any of the details had changed. The appellant responded that nothing had changed other than that he had changed his business premises. Believing, on this basis, that the appellant still had authority to direct the sale of the shares, the stockbroker sold them that day (30 May 2007) and a cheque for $73,790.02 was sent to the appellant's office. In a statement to police the stockbroker was unable to recall at what time on 30 May 2007 the appellant had given instructions for the sale, although the sale was processed at 12.15pm. Accordingly, it could not be ascertained whether the instructions were given before or after the visit by the Committee staff to the appellant's legal practice.
On 31 May 2007 the appellant was suspended from legal practice by the State Administrative Tribunal and was restrained from dealing with specified bank accounts until further notice. The appellant was prevented from obtaining the benefit of the proceeds of sale of these shares by this action and by the appointment by the Legal Practice Board of a solicitor to supervise the appellant's practice.

The sentencing remarks and the sentence

The sentencing judge recited the background to these events. He then made the following observations that are relevant to an assessment of the degree of criminality involved in the appellant's actions.
1.On 17 August 2001 the appellant began the course of conduct that led to the charges he ultimately faced, when he stole $125,000 and deposited it in one of his own accounts to pay some pressing bills. Once started, the pattern continued. The appellant made a decision to steal on 70 different occasions.
2.The appellant was in financial difficulties at (or shortly after) the time he became involved with the deceased's affairs. A financial summary schedule provided by the prosecution showed he was largely dependant on the deceased's money to make ends meet.
3.The appellant was well aware of the deceased's mental decline, as that was the reason he had been appointed in the first place. In addition he was being advised of his client's condition in an ongoing manner by the Silver Chain service.
4.During the period before the deceased's death the appellant stole money to refresh his personal accounts which were almost empty at the time on each occasion.
5.The appellant knew that the deceased's death brought an end to his powers as attorney, yet he continued to draw on the account and evaded inquiries from the nieces and others until the Legal Practice Board became involved.
6.The appellant did not cease to plunder the estate of his own accord and only the arrival of staff from the Legal Practice Board brought matters to a head. When these staff attended his practice without notice the appellant first gave them equivocal answers then left the premises without advising them and did not return.
7.By 30 May 2007 the appellant had stolen all the available funds and there was nothing left, so he turned to the shares. It could not be determined whether the instruction to sell the shares was given prior to or after the Committee staff visit. The cheque of the proceeds from this sale reached the appellant's office but events (his suspension from practice by the Board) intervened and the money did not reach the appellant.
8.The appellant's crimes represented the worst possible offences for a solicitor. Public trust in those whom the public expect to act with integrity would be lessened. The offences were a betrayal of trust as a solicitor engaged to protect the financial affairs of the deceased for the appellant's own greed and gain. In the peculiar circumstances of the case the appellant's conduct had not diminished the deceased's quality of life but it remained a gross breach of trust.
9.In August 2001 he was a first offender, but by May 2007 he had become a serial offender.
The sentencing judge turned to matters personal to the appellant. He was 41 years of age and came from a respected family. His own family situation was unclear but he was physically separated from his wife and most of his children. He had produced references that spoke highly of his character and his contribution to community life. The appellant had lost his home and his legal practice and was financially ruined. He had no prior record of offences.
The psychological report indicated that during the offending period the appellant was the subject of stressful life events including the loss of his brother to cancer and the serious illness of his wife. The psychologist suggested that the appellant might obtain a psychiatric opinion concerning bipolar mood disorder. However, the sentencing judge said even if such a disorder were to be established it would offer little mitigation as the offences were committed in order to provide funds for his personal use and the 71 offences were shown to be purposeful, not impulsive.
The sentencing judge noted that the appellant had pleaded guilty following voluntary case conferencing at a relatively early stage in the proceeding. This indicated remorse. However, the sentencing judge also commented that the cheque book had not been recovered and that the appellant had not cooperated with the Committee. While there was remorse, the depth of that remorse was uncertain. On the other hand, the guilty plea had a utilitarian effect in that it had saved the State a lengthy trial. His Honour determined that a discount of approximately 25 per cent was called for to recognise the effect of the guilty plea.
Defence counsel had submitted that the 'one transaction' principle applied in assessing the total criminality of the appellant's conduct and the sentence should reflect this consideration. His Honour accepted that submission 'to some extent' but preferred to adopt the three categories of offences that I have mentioned. The first category was the misuse of the moneys while the deceased was alive. This represented an invasion of the deceased's legally protected interests. Whatever excuses the appellant might have advanced at that time could not apply to the second category because the appellant well knew that his authority had ceased. There was a distinct criminality involved in the second stage as the criminality affected the deceased's heirs. The third category was 'the final count of attempted fraud which [was] brazen whatever time of day it occurred'.

The sentencing judge then mentioned some of the authorities to which he had been referred. He noted the focus on the aggravating impact of breach of trust in cases such as this. He also commented that the cases involving breaches of trust and large defalcations indicated a wide range of sentences depending on individual circumstances. He then remarked that general deterrence was the dominant consideration and that the appellant's past good record was 'largely swamped by the seriousness of [the appellant's] offending in [his] role as a solicitor'.
When it came to structuring the sentence his Honour reverted to the three categories and indicated he would accumulate the terms from each group and then take a 'last look' to ensure that the sentence did not 'exceed the proper purpose of punishment'. The sentences for the charges in the first category (counts 2 to 92) were either 3 years and 6 months or 3 years or 2 years, all to be served concurrently. This resulted in an effective term for those counts of 3 years and 6 months. In relation to each of the charges in the second category (counts 93 to 102) he imposed a term of 2 years to be served concurrently with each other but cumulatively upon the first category sentences. The third category (count 103) was visited with a sentence of 2 years to be served cumulatively on all other terms. This is how the total sentence of 7 years and 6 months was made up. His Honour ordered that the appellant be eligible for parole after serving 5 years and 6 months. He also made a compensation order of $896,787 in favour of the deceased's estate.

Grounds of appeal

The appellant advances two grounds of appeal both of which relate solely to the sentence imposed for count 103 (attempting to obtain a benefit by deceit). They are:
1.In relation to count 103 on the indictment, the sentencing judge erred in law by imposing a sentence that was manifestly excessive in light of the maximum sentence available at law, the standards of sentencing that should customarily be observed in relation to this offence, the place which the criminal conduct occupies on the scale of seriousness of crimes of this type, and all of the appellant's personal circumstances.
2.The sentencing judge erred in law by failing to properly apply the totality principle by making the sentence in relation to count 103 wholly cumulative upon all other sentences on the indictment.

Ground 1 - the sentence for count 103

The proper description of the offence in count 103 is that the appellant, with intent to defraud, by deceit or fraudulent means, attempted to gain a benefit (being the proceeds of the sale of the shares). The maximum sentence for this offence is imprisonment for 3 years and 6 months. The appellant concedes that there is no tariff for such an offence but submits that the sentence of 2 years is manifestly excessive given the maximum penalty available, the relative seriousness of the offending conduct, his personal circumstances and the standards of sentencing for such crimes.
The sentencing judge made express reference to all of the personal circumstances now advanced by the appellant in support of this ground of appeal. They include:
(a)the early guilty plea;
(b)the appellant's good character and contributions to community life;
(c)the fact that he was financially ruined and had lost his career;
(d)the enormous stress to which he had been subjected including first the death of his brother and secondly his wife's illness and the attendant extra burden of caring for his family; and
(e)the shame and derision caused to his family who were well known in the area.
An allowance of 25 per cent (approximately) was made for the guilty plea. It cannot be said that his Honour overlooked any of the other factors or failed to accord them weight. This aspect of the challenge has not been made out.
As a matter of mathematics (and sentencing does not lend itself to a purely mathematical approach) the starting point for a 2 year sentence, before giving a 25% credit for the guilty plea would be 32 months. This is approximately 75% of the available maximum and that does seem high. On the other hand, there were some serious elements attaching to this offence. It occurred about 15 months after the time when, to the appellant's knowledge, his authority to act on behalf of the deceased came to an end. There was an additional element of dishonesty in the express representation to the stockbroker that circumstances had not changed. It occurred after the more liquid assets of the deceased had been exhausted by the appellant's wrongdoing and the shares represented the only other readily realisable form of funds. To use the sentencing judge's words it was a brazen act and a gross breach of trust. There was no evidence that the instruction to sell was placed after the visit of staff from the Committee to the appellant's practice and the appellant fell to be sentenced accordingly. But he took no steps to countermand the order before it was put into effect. His explanation to this Court was that he had been with the Board staff for three or four hours. Once he left his office on 30 May 2007 the share transaction was the last thing on his mind and it did not cross his mind to revoke the order. But that is hardly mitigatory.
In relation to standards of sentencing, there is no tariff for an attempt to gain a benefit by deceit. The appellant referred to a large number of previous decisions of this Court to demonstrate that the term of 2 years was outside the range of sentences commonly imposed. I need only mention Hladin v The State of Western Australia [2005] WASCA 50 because it was the most recent of them and many of the earlier cases mentioned by the appellant were considered in it. In Hladin, Steytler P reviewed cases involving multiple counts of fraud and stealing. In relation to fraud, they all involved the substantive offence (rather than an attempt) for which the maximum penalty is 7 years. His Honour did not enunciate a range. All that can be said is that his Honour found that a sentence of 3 years (in post-transitional terms) was excessive and (and in the circumstances of that case) sentences for individual counts should be reduced to 2 years.
This illustrates the difficulty of identifying a range of sentences commonly imposed. For example, where there are multiple counts sentences imposed for individual charges might well have been reduced because of totality considerations and it is not always easy to detect when (and how) that has occurred in a particular case. As Steytler P remarked in Hladin, at [36] each case necessarily turns on its own peculiar circumstances. The variety of circumstances in which fraud of the 'white collar crime' variety can occur is almost infinite. Some of the offenders in the cases reviewed by Steytler P were is a position of trust (such as a director of a company or a senior employee) but none of them were solicitors. The appellant was a solicitor. He was in a unique position to defraud the deceased because of the latter's impaired mental acuity. The offending took place over a period of six years and the instant offence came at the very end of that period and had the serious elements that I have mentioned. Neither Hladin itself nor any of the cases referred to in it provide much guidance as to a range within which an appropriate sentence for count 103 would fall.
The appellant also referred to three first instance sentences imposed on solicitors who had stolen moneys. But none of them are comparable in terms of the amount involved or the period over which the offending conduct continued.
The appellant's personal circumstances, including absence of prior offences, his community service, the stress he was under due to family tragedies and illness, his financial predicament and the embarrassment he and his extended family would inevitably suffer are factors that have to be (and were) taken into account. But they fall to be balanced against the seriousness of the offending conduct and the breach of trust that it involved. In situations such as this, where general deterrence is a dominant sentencing consideration, personal circumstances (while remaining relevant) will often be given less weight than might otherwise be the case.
In my view, the sentence of 2 years for count 103 is high. But it cannot be divorced from the context in which it occurred. When all of the circumstances are considered I do not think it is manifestly excessive. Ground 1 has not been made out.

Ground 2 - accumulation and totality

There are two aspects to the second ground of appeal. First, the sentencing judge should have applied the 'one transaction principle' and made the sentence for count 103 concurrent with the other sentences. Secondly, the decision to accumulate the sentence for count 103 on the other terms has resulted in a sentence that offends both limbs of the totality principle, that is, the aggregate sentence is disproportionate to the overall criminality of the appellant's conduct and it is crushing.
In Royer v The State of Western Australia [2009] WASCA 139 [19] ‑ [31] I discussed the one transaction principle and I will not repeat what I said in that case. It is sufficient to say that the mischief which the principle is designed to avoid relates to the danger that an offender may be punished twice for what is essentially the same criminality represented by related offences.
The appellant submits that the offences were either a series of occurrences or part of a multifaceted course of criminal conduct. The word 'multifaceted' means having many sides or aspects. In my view to say that 70 stealing offences committed from time to time over a six year period followed by an attempted fraud are simply a series of occurrences or are part of a multifaceted course of criminal conduct is to misunderstand the true import of those concepts. It is true that the stealing offences occurred in similar circumstances and were perpetrated using a similar technique. But in my view it does not follow that a theft on 17 August 2001 and another theft on 10 February 2006 or on 3 May 2007 are so intimately related or connected that they represent the same criminality. As the period wore on the appellant had the opportunity to reconsider his actions. He did not, and persisted in his wrongdoing. The deceased's condition was deteriorating and this, too, might be said to affect the degree of responsibility that the appellant had towards the donor of the power of attorney. And, of course, the offence the subject of count 103 was different both in legal genre (fraud as opposed to theft) and factual circumstances (attempting to sell shares without authority and to illegally divert the proceeds as opposed to illegally removing moneys from a bank account).
There was a logic to the decision to separate the offences into three categories. There were, as I have already said, similarities in circumstances and technique within the first two categories. But as a matter of principle it seems to me that ordering concurrency of sentences within the first two categories had more to do with totality than it did with the one transaction principle. In my view the argument that the sentence for count 103 should have been concurrent with other sentences due to the one transaction principle is without merit.
This brings me to the totality principle. The appellant does not challenge any of the individual sentences (apart from that for count 103) and nor does he cavil with the accumulation of the sentences between the first two categories. He acknowledges that a total sentence of 5 years and 6 months was appropriate but submits that the addition of a further two years serves no legitimate sentencing purpose.
The sentencing judge had to weigh up the competing factors. He had to take into account all of the recognised sentencing objectives, including general deterrence, punishment and reformation. The 2 year term for count 103 was high but not manifestly excessive. The accumulation of that term with the sentences for the first two categories was in accord with sentencing principles. Leaving to one side the question whether it was crushing, it seems to me that the addition of 2 years to the terms totalling 5 years and 6 months did have a role to play in implementing recognised sentencing objectives and has not resulted in a sentence that is disproportionate to the overall criminality of the appellant's conduct.
In the context of the totality principle, a sentence may be regarded as 'crushing' if it leaves the offender with no hope for the future; would provoke a feeling of hopelessness in the offender if and when he is released; or destroys a reasonable expectation of a useful life after release: Jarvis v The Queen (1993) 20 WAR 201, 205 (Ipp J). The appellant argues that the additional 2 years has resulted in a sentence that has all of those consequences.
The appellant was 41 years of age at the time he was sentenced. He was made eligible for parole. He will, therefore be released some time between the ages of 47 and 49. It is true that in all likelihood he will never again be in a position to practice as a lawyer. It is also true that his standing in the community is unlikely to return to the level he enjoyed before his offences became public. It is not possible to say what will happen to the appellant's family relationships when he is released. All of this will have an adverse impact on his quality of life and his employment prospects. But it is not immediately apparent to me that the difference between a head sentence of 7 years and 6 months and one that is up to 2 years less than that will materially worsen those already adverse considerations.
The appellant is obviously a person of some intelligence and he was able to obtain alternative employment after he was suspended from legal practice and while he was awaiting disposition of the charges. In his oral submissions the appellant said that he wished to undertake further

education to broaden his skill base and to enhance his employment prospects upon release. However, he said that it was 'extremely difficult and in most instances it seems quite impossible' to do so within the prison system due to restrictions on the use of computers. There is no evidence before the Court about those matters and the virtual impossibility of undertaking higher education within the prison system is not something about which I would be prepared to take judicial notice.

In all of the circumstances I do not accept that the accumulation of the 2 year sentence for count 103 on the terms totalling 5 years and 6 months for counts 2 to 102 has resulted in a sentence that is crushing in the relevant sense. Ground 2 has not been made out.

Conclusion

I would refuse leave to appeal and dismiss the appeal.
WHEELER JA: I agree with Owen JA.
NEWNES JA: I agree with Owen JA.

SCHEDULE

COUNT	SENTENCE	CHARGE
2	3 1/2 years	Stealing $125,000 (17 Aug 2001)
3	3 years	Stealing $20,000 (24 Oct 2001)
5	3 years	Stealing $20,000 (11 Dec 2001)
6	2 years	Stealing $5,000 (18 Dec 2001)
7	3 years	Stealing $35,000 (31 Jan 2002)
8	2 years	Stealing $3,500 (14 Feb 2002)
10	3 years	Stealing $50,000 (24 May 2002)
15	3 years	Stealing $43,164 (14 Oct 2002)
16	3 years	Stealing $38,737.93 (21 Oct 2002)
17	2 years	Stealing $15,000 (25 Oct 2002)
18	3 years	Stealing $20,000 (6 Dec 2002)
19	3 years	Stealing $48,376.64 (17 Dec 2002)
20	2 years	Stealing $7,114.30 (17 Dec 2002)
24	2 years	Stealing $2,787.95 (5 March 2003)
27	2 years	Stealing $5,000 (1 May 2003)
34	2 years	Stealing $3,500 (25 Sept 2003)
35	2 years	Stealing $3,000 (2 Oct 2003)
37	2 years	Stealing $6,000 (17 Oct 2003)
39	2 years	Stealing $5,000 (28 Nov 2003)
40	2 years	Stealing $5,000 (15 Dec 2003)

41	2 years	Stealing $5,000 (6 Jan 2004)
43	2 years	Stealing $5,000 (3 Feb 2004)
44	2 years	Stealing $10,006.50 (9 Feb 2004)
45	2 years	Stealing $4,400 (11 Feb 2004)
46	2 years	Stealing $4,070 (20 Feb 2004)
47	2 years	Stealing $8,195 (8 March 2004)
48	2 years	Stealing $5,400 (24 March 2004)
50	2 years	Stealing $7,000 (13 April 2004)
51	2 years	Stealing $15,000 (12 May 2004)
54	2 years	Stealing $17,000 (19 July 2004)
56	2 years	Stealing $3,430 (17 Sept 2004)
57	2 years	Stealing $7,400 (22 Sept 2004)
58	2 years	Stealing $2,000 (28 Sept 2004)
59	2 years	Stealing $7,428 (13 Oct 2004)
61	2 years	Stealing $8,943.50 (8 Nov 2004)
62	2 years	Stealing $12,498 (6 Dec 2004)
63	2 years	Stealing $21,360 (7 Jan 2005)
64	2 years	Stealing $5,400 (25 Jan 2005)
65	2 years	Stealing $2,000 (31 Jan 2005)
66	2 years	Stealing $2,000 (31 Jan 2005)
67	2 years	Stealing $3,200 (25 Feb 2005)
68	2 years	Stealing $12,320 (10 March 2005)

71	2 years	Stealing $12,000 (3 May 2005)
74	3 years	Stealing $29,413.48 (16 June 2005)
75	2 years	Stealing $13,400 (17 June 2005)
76	2 years	Stealing $4,000 (22 June 2005)
78	2 years	Stealing $2,000 (1 July 2005)
79	2 years	Stealing $7,000 (15 July 2005)
80	2 years	Stealing $5,200 (1 Aug 2005)
81	2 years	Stealing $4,200 (26 Aug 2005)
83	2 years	Stealing $3,800 (9 Sept 2005)
84	3 years	Stealing $35,000 (10 Oct 2005)
85	2 years	Stealing $5,000 (2 Nov 2005)
86	2 years	Stealing $1,000 (18 Nov 2005)
87	2 years	Stealing $1,500 (18 Nov 2005)
88	2 years	Stealing $1,000 (2 Dec 2005)
89	2 years	Stealing $1,500 (6 Dec 2005)
90	2 years	Stealing $1,500 (16 Dec 2005)
91	2years	Stealing $2,000 (23 Dec 2005)
92	2 years	Stealing $7,500 (10 Feb 2006)
93	2 years	Stealing $15,000 (12 April 2006)
94	2 years	Stealing $9,875 (28 Sept 2006)
95	2 years	Stealing $5,600 (24 Oct 2006)
96	2 years	Stealing $19,480 (23 Nov 2006)

97	2 years	Stealing $7,942 (7 Dec 2006)
98	2 years	Stealing $12,720 (24 Jan 2007)
99	2 years	Stealing $12,400 (21 Feb 2007)
100	2 years	Stealing $12,325 (7 March 2007)
101	2 years	Stealing $22,980 (28 March 2007)
102	2 years	Stealing $11,220 (3 May 2007)
103	2 years	Intent to defraud the sum of $73,790.02 from sale of shares held in the name of the deceased (30 May 2007)

Note:
•Counts 2 – 92 inclusive: stealing the property of the deceased.
•Counts 93 – 102 inclusive: stealing the property of the Public Trustee.
•Count 103: attempting to gain a benefit by deceit.

[2010] WASCA 19

15 FEBRUARY 2010

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Criminal Liability

Sentencing