DPP v Werden - [2006] VSC 397

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1476 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

GABRIEL WERDEN

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4 July and 23 October 2006
DATE OF SENTENCE:	27 October 2006
CASE MAY BE CITED AS:	DPP v Werden
MEDIUM NEUTRAL CITATION:	[2006] VSC 397

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Criminal Law – Sentence – Solicitor in sole practice in Melbourne – Trust account deficiency of over $1 million – Nine counts of theft over a period of 10 months in 1997 and 1998 – Three counts of obtaining financial advantage by deception in 2000 - Pleas of guilty – Head sentence of 5 years and 10 months – non-parole period of 3 years and 4 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms M. Williams S.C.	Office of Public Prosecutions
For the Accused	Mr M. Regan	Victoria Legal Aid

HIS HONOUR:

Gabriel Werden, you have pleaded guilty to thirteen offences. One count is of having a deficiency in your trust account as a solicitor contrary to s.188 of the Legal Practice Act 1996. There are nine counts of theft. There are three counts of obtaining financial advantage by deception. The maximum penalties for each of having a trust account deficiency, theft and obtaining financial advantage by deception are respectively 15 years, 10 years and 10 years imprisonment. For reasons that I will outline later, there is a substituted maximum of 20 years imprisonment for obtaining financial advantage by deception in your case. That is so, because under the Sentencing Act 1991, you must be declared by me to be, and I do declare that you are, a continuing criminal enterprise offender.

The deficiency in your trust account as a lawyer was $1,104,729.11 as at 25 March 1998. That figure was the total of deficiencies in the individual accounts of the nine clients from whom money was stolen by you. The amounts of the thefts ranged from the highest at $550,000 on count 6 to the lowest of $3,000 on count 10.

The thefts took place between May 1997 and March 1998. During that period you were conducting a legal practice in Melbourne. In the course of that practice, you received money for a variety of purposes. Those purposes included: investment on first mortgage; short term investment; payment towards the purchase of property; payment towards the purchase of a business by the client; and payment to settle an outstanding obligation of the client. As a legal practitioner, your obligation was clear. It was to pay the money received by you into the trust account of the practice and then to pay out money from the trust account only as per your instructions. As to some of the nine clients to whom the counts to which you have pleaded guilty relate, you paid the money received into an account other than the trust account of the practice. As to all nine clients, you did not apply the money as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] VSC 397
Decision Date: 27 October 2006

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Werden involved the sentencing of a Melbourne-based solicitor who had been convicted on multiple counts of theft and obtaining financial advantage by deception. The defendant had pleaded guilty to nine counts of theft that occurred over a ten-month period in 1997 and 1998, as well as three counts of obtaining financial advantage by deception in 2000. The court was required to determine the appropriate sentence for the defendant, taking into account the nature and circumstances of the offences and the defendant's culpability.

The primary legal issue the court needed to address was the determination of an appropriate sentence for the defendant's criminal conduct. The court had to consider the cumulative effect of the offences, the defendant's role as a solicitor, and the significant trust account deficiency of over $1 million that resulted from his actions. The court also needed to balance the need for punishment, deterrence, and rehabilitation, while ensuring that the sentence was proportionate to the seriousness of the offences.

The court, in delivering its judgment, highlighted the gravity of the defendant's misconduct and his breach of the trust placed in him as a solicitor. It found that the offences were of a serious nature, involving a significant breach of trust and professional responsibility. The court noted the defendant's guilty pleas, which indicated an acceptance of responsibility, and his otherwise unblemished character. However, the court also emphasised the need for general deterrence, given the defendant's position of trust and the significant financial loss caused to his clients. After considering all relevant factors, the court imposed a head sentence of 5 years and 10 months imprisonment, with a non-parole period of 3 years and 4 months.

Orders