Lau v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0221

ANDREW LAU	Appellant
v
THE KING	Respondent

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JUDGES:	BOYCE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2024
DATE OF ORDERS:	3 May 2024
DATE OF REASONS:	20 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 94
JUDGMENT APPEALED FROM:	[2023] VCC 1781 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Thefts from deceased’s estate by nominated lay executor prior to grant of probate – Whether breach of trust committed by lay executor is of equal seriousness to a breach of trust by professional – Lay executor – Breach of fiduciary duty – Breach of trust – Theft – Make false document – Appeal allowed.

Sentencing Act 1991 s 6AAA; Administration and Probate Act 1958, s 90A; Criminal Procedure Act 2009 s 281(1)(b).

SA Police v John (1995) 79 A Crim R 510; R v Fraser [2004] VSCA 147; R v Wright(No 2) [1968] VR 174, applied.

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Counsel
Appellant:		Mr C K Wareham with Mr P Reynolds
Respondent:		Ms B Goding
Solicitors
Appellant:	Tyler Tipping & Woods
Respondent:	Solicitor for Public Prosecutions

BOYCE JA
T FORREST JA:

Introduction

The appellant pleaded guilty in the County Court on 15 September and 26 September 2023 to three charges of theft[1] (charges 1, 2 and 4) and one charge of making a false document[2] (charge 3).
[1]Contrary to s 74(1) of the Crimes Act 1958.
[2]Contrary to s 83A(1) of the Crimes Act 1958.
The appellant was sentenced to an aggregate sentence of nine months’ imprisonment, and a two year community correction order (‘CCO’) with conditions requiring him to be supervised and undergo assessment and treatment in regard to alcohol and his mental health. The judge declared that had the appellant not pleaded guilty he would have imposed a sentence of two years’ imprisonment with a non-parole period of 16 months.[3]
[3]Pursuant to s 6AAA of the Sentencing Act 1991.
The appellant sought leave to appeal against sentence on the following grounds:
(1)The learned sentencing judge erred in treating a breach of trust committed by a lay executor as of equal seriousness to a breach of trust by a professional.
(2)The learned sentencing judge erred in finding that by failing to prove the will, to obtain probate and properly administer the estate the appellant committed a further breach of trust, which further breach of trust was an aggravated feature of the offending.
(3)The sentence imposed was manifestly excessive, when regard is had to the following factors:
(a)The appellant’s plea, its timing and inherent utility;
(b)The discount to be afforded to pleas of guilty during the currency of the COVID-19 pandemic;
(c)Delay;
(d)The appellant’s expressions of remorse and limited criminal history; and
(e)The objective gravity of the offending.
The application for leave was heard on 22 April 2024. On 3 May 2024, we made orders granting leave to appeal, allowing the appeal and setting aside the sentences imposed in the County Court. We resentenced the appellant to an aggregate term of imprisonment of seven months combined with a CCO of two years’ duration. This CCO was in the same terms and conditions ordered in the sentencing court. What follows are our reasons for making those orders.

Summary of key facts

The appellant is the only child of the deceased — the appellant’s mother — who died on 27 September 2015. By the time of her death the deceased had been divorced for some years from the appellant’s father. After the divorce, the deceased remarried. The deceased’s second husband died in 2014.
The deceased left a will, dated 24 July 2015, which appointed both the appellant and a friend of the deceased as executors. The beneficiaries under the will, in equal shares, were the appellant’s two sons and two sons of the deceased’s second husband.
The other nominated executor — the deceased’s friend — discovered that the deceased had died. She notified both the police and the appellant. But the friend lived mostly overseas and thus had no involvement in the administration of the estate. The appellant told the friend that he had been advised to apply for probate on his own.
Nevertheless, for more than two years after his mother’s death the appellant took no steps to prove the will, obtain a grant of probate or otherwise administer the deceased’s estate. He did not notify the sons of the deceased’s second husband that they were beneficiaries under the will.
The appellant did, however, make some effort to prepare for sale a house and land previously occupied by the deceased which formed part of the estate.
At the date of the deceased’s death the deceased had two accounts with a bank – a pension account (into which her pension was paid) and a mortgage account which could be operated by a credit card and cheque book. The balance of the debt in the mortgage account was secured by a mortgage over the property where the deceased had lived.
At the time of her death, the deceased’s pension account had a credit balance of $6,042.35. In the days following her death the appellant began to make use of a debit card to withdraw funds from that account. The government continued to make fortnightly payments of the deceased’s aged pension into this account, that is, until November 2017 when such payments were ceased.
Until the government payments were stopped, the appellant repeatedly drew funds from the mortgage and pension accounts. Some of these funds were applied for purposes connected to the maintenance of the house built on the real property; some of it was applied to the education of the appellant’s sons who were beneficiaries under the will. Nevertheless, a large part of the funds withdrawn by the appellant was applied for his own personal use.
Between 28 September 2015 and 24 November 2017 the appellant withdrew $56,353.35 from the pension account using the debit card.
Of these withdrawals, $48,582.10 was for the appellant’s personal purposes unconnected to the interests of the estate or the beneficiaries. This was the basis of charge 1, theft.
Between 4 December 2015 and 13 July 2016 the appellant signed 28 cheques in the name of his mother and had drawn on the mortgage account in a total amount of $67,784.63. In each instance the appellant signed the cheque so that it appeared as if the cheque had been signed by the deceased. These facts formed the basis of charge 2, make false document.
Of the 28 cheques signed by the appellant, 16 were honoured by the bank thereby providing to the appellant a sum of $55,063.00 which was applied to the appellant’s personal purposes unconnected to the interests of the estate or the beneficiaries. This formed the basis of charge 3, theft.
Of these 16 cheques, 12 cheques, totalling $25,282, were made payable to the appellant’s then partner. The appellant’s partner would pay the appellant the funds once they were cleared. A cheque for $13,841.91 and one for $9,238.86 were made payable to Defence Bank and Lion Finance respectively, and then used to repay the appellant’s loans.
Between 27 October 2015 and 18 August 2016, by means of 913 credit card transactions, the appellant withdrew $79,647.90 from the mortgage account. Of these withdrawals, $67,494.28 were for the appellant’s personal purposes unconnected to the interests of the estate or the beneficiaries. These acts formed the basis of charge 4, theft.
On 11 February 2019, the Supreme Court granted Letters of Administration (with the will attached) to the two beneficiary sons of the deceased’s second husband.
On 17 March 2021, the appellant was interviewed by police. He described finding his mother’s will immediately upon her death and becoming aware of the identity of the nominated beneficiaries and executors. He said that he had no idea what to do and initially made contact with a solicitor. He considered contesting the will.
He stated that he knew his mother’s PIN codes and so had access to her accounts. He initially withdrew funds for funeral expenses and later paid people, including his sons, to assist in painting the house on the deceased’s property. He acknowledged signing cheques on his mother’s mortgage account in order to pay his debts.
The appellant attributed his conduct to being in a financial crisis as well as frustration. He said that rational decisions weren’t being made and that there were indiscretions.
The appellant was charged on 24 February 2022 and pleaded guilty at a committal hearing on 16 December 2022.
The total value obtained by the appellant was $177,038.00. Through considerable effort expended by one of the beneficiaries under the will (one of the sons of the deceased’s second husband), the bank ultimately reimbursed the estate an amount of $128,131.30.[4]
[4]DPP v Lau [2024] VCC 1781, [17] (‘Reasons’).

The appellant

The appellant was 52 at the time of the plea. He was an only child and grew up in Sydney until his parents separated when he was around the age of 10. His parents’ relationship had been strained and they each battled mental illness. The appellant’s father had attempted suicide when the appellant was around eight years of age; the appellant’s mother struggled with manic depression. The appellant’s father went on to remarry and have another child. The appellant and his step-mother did not have a good relationship. The appellant decided to move to Melbourne and live with his maternal grandparents. His mother then remarried.
The appellant completed high school albeit he struggled academically. He ultimately reconnected with his father and moved interstate and was employed in a role cleaning and maintaining his father’s boat. This employment was short-lived, and, soon after, the appellant successfully applied to the Royal Australian Airforce (‘RAAF’) and was accepted. The appellant worked as an aircraft electrician for a number of years before transitioning to become a recruit instructor. The appellant ultimately left the air force and started his own four-wheel drive touring business. This business was not financially viable and ultimately failed. The appellant obtained employment in maintenance at a caravan park, a position he also eventually lost.
The appellant married in 1995 and went on to have two children — the two beneficiaries under the deceased’s will. This marriage ended in 2013. The appellant then commenced a new relationship but this fell apart during the offending period. At the time of the plea the appellant was in a relationship that was stable and supportive.
The appellant was diagnosed with Bipolar Mood Disorder in 2013 and was prescribed lithium which he took for six to eight months before ceasing treatment. A psychological report authored by Ms Carla Lechner was relied on at the plea hearing. As a result of tests applied by Ms Lechner, she concluded that the appellant was likely to be severely psychologically distressed. The appellant also fell into the extreme range when it came to an assessment of whether he suffered from depression. Ms Lechner opined that the appellant fulfilled the criteria for a provisional diagnosis of Bipolar Mood Disorder Type 2. Ms Lechner observed that:
A period of immediate incarceration would be most detrimental to [the appellant’s] mental health given the stressful environment of a prison. I would be most concerned that prison would precipitate a period of either deep depression or a hypomanic episode.
The appellant developed a binge drinking habit during his time in the RAAF. During the offending period the appellant reported that he was drinking to excess almost daily.
In addressing the context of the offending the appellant submitted that he was experiencing significant stresses at the time which included him grappling with the death of his mother, experiencing difficulties in his second marriage (which ultimately ended), and the loss of employment and consequent financial stress.
Importantly, for the purposes of the appellant’s ground 1 of appeal in this Court, the appellant submitted that while his offending was committed in breach of trust, this offending was of a lesser magnitude when compared to similar offending committed by someone who was acting in a professional capacity like a solicitor or accountant.
In mitigation, the appellant relied, also, on his early pleas of guilty, delay, the effects of the COVID-19 pandemic as well as the fifth and sixth limbs of Verdins.[5]
[5]R v Verdins (2007) 16 VR 269; [2007] VSCA 102. The fifth limb relates to whether the existence of a mental condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on an offender than it would a person of normal health. The sixth limb concerns circumstances where there is a serious risk of imprisonment having a significant adverse effect on an offender’s mental health.

The Reasons

The sentencing judge considered the appellant’s submission that the breach of trust committed by the appellant was of a lesser order than had the relevant offending been committed by a professional such as a solicitor or accountant. The judge rejected this submission. The judge held, in terms, that ‘a breach of trust of the duties of an executor and trustee of a will… [is] of equal seriousness to breaches committed by professionals of their duties’.[6]
[6]Reasons, [17].
The judge accepted that ‘general deterrence, denunciation and punishment [were] prominent factors for consideration’. The judge found that the appellant’s offending was in the ‘high range, given its persistence over a period of some two years and the amounts stolen or obtained’. As such, the judge considered that the appellant’s offending had to be met with a sentence that included a custodial element.
The judge took into account the appellant’s personal background and, most notably, that the appellant had ‘served in the RAAF for a period of 22 years’. The judge referred to a character reference that had been supplied by the appellant’s current partner which described the appellant as a ‘kind and gentle person’.[7]
[7]Reasons, [22]–[23].
The judge did not accept a certain level of naiveté expressed by the appellant to Ms Lechner which featured in Ms Lechner’s report. Nevertheless, the judge accepted that the appellant’s offending ‘occurred during the period when [the appellant] was experiencing what can be described, as to his mental state, as destabilisation’.[8]
[8]Reasons, [26].
In relation to further mitigatory factors, the judge accepted the applicability of limbs five and six described in Verdins and took into account:
(a)that the appellant had pleaded guilty early and in circumstances of remorse; which also entitled the appellant to a utilitarian benefit;
(b)that the appellant was entitled to an increased utilitarian benefit by virtue of the appellant’s pleas on account of the backlog of cases caused by the COVID–19 pandemic;
(c)that the appellant had prospects of rehabilitation;
(d)that the delay and uncertainty suffered by the appellant was not of his own making;
(e)that there was a need for concurrency as between the different sentences given the close similarity between the offending and that the offending overlapped in time;
(f)that the appellant now has a stable relationship and, more recently, had maintained full employment.[9]
[9]Reasons, [27]–[28].

Submissions

Under cover of ground 1 the appellant submitted that the sentencing judge had erred by treating a breach of trust committed by a lay executor, such as the appellant, as of equal seriousness to a similar breach of trust committed by a professional such as a solicitor or accountant. It was submitted that there was a relevant difference. This was due to the fact that in the instance of a professional there was a relationship of trust that the ‘community’ or ‘society’ placed, or conferred, upon the professional’s role. Unlike in the instance of a lay executor, the breach of trust committed by a professional was ‘apt to erode public confidence’ in the relevant profession. There was ‘no public dimension’, it was submitted, in the case of a lay executor.
Orally it was submitted that the difference between a lay executor such as the appellant and a professional, such as an accountant or solicitor, is stark because:
the fact of a breach of fiduciary duty by someone in whom society has entrusted special rights and privileges, being a manager of money, like a solicitor or an accountant, it’s worse.
…
All other things being equal, it’s worse.
…
solicitors are granted the privileges in their office and accountants are granted privileges and they hold themselves out as managing money, they’re subject to professional duties in doing that and so sentencing principles, including general deterrence loom much larger in the case of a solicitor or an accountant.
Additionally, it was submitted that the appellant was — unlike a professional accountant or lawyer — of average or low intelligence and, according to the psychologist Ms Lechner, both unprepared and overwhelmed by his role as co-executor of his mother’s estate.
The respondent submitted that at the plea hearing it had been conceded that the appellant owed a fiduciary duty to the beneficiaries of the estate. Thus, once it was accepted that the appellant’s offending was in breach of this duty then the offending was a ‘very, very serious matter’. The respondent drew attention to submissions that were made on the plea and contended that, against that particular context, it was clear that the judge ‘was saying no more than, as a starting point, a breach of trust by an executor of an estate was similar in gravity to that of a professional who commits offending in the course of their employment’.
The respondent submitted that the judge ‘carefully considered’ the appellant’s breach of trust and balanced this with other sentencing factors.
Orally it was submitted by the respondent that the impugned statement made by the judge was:
simply a rejection of there being a blanket rule or an absolute statement that in all circumstances, offending of this nature by a professional as opposed to a lay person must be more serious. The takeaway … is that there’ll be various matters that go to an assessment of the objective gravity of the offending and that each case needs to be assessed on its own facts.
Under ground 2 — but without in any way seeking to depart from the proposition that the appellant had acted in breach of a fiduciary duty — it was submitted that it was in error for the judge to conclude that the appellant had further breached a duty of trust ‘in addition to these crimes of which he is charged’ by failing to ‘prove the will, obtain probate or properly administer the estate’.
It was submitted that it was wrong to aggravate the appellant’s offending by speaking of a duty on the appellant’s part to prove the will or obtain probate when the appellant had the right to renounce his role as executor. Moreover, it was submitted that although the appellant had, as a matter of fact, failed properly to administer his mother’s estate, this was ‘the very essence of the offending’ and thus could not be doubly counted against the appellant in addition to the commission of his crimes.
The respondent, to the contrary, submitted that the appellant’s inaction over a two-year period during which he offended and during which he had not acted so as to renounce his executorship ‘amounted to a further breach of trust towards the beneficiaries of the estate and the deceased’.
Pursuant to ground 3, the appellant submitted that the sentence imposed was manifestly excessive.
In support of this ground of appeal, the appellant relied primarily upon the following matters:
(a)The appellant’s pleas of guilty, they having been entered ‘at the earliest possible time’;
(b)The utilitarian benefit of the appellant’s pleas, the pleas having saved witnesses being cross-examined at both committal and at trial as well as the time and expense of a trial. This utilitarian benefit was increased because the pleas were entered at a time when the court’s lists were congested because of COVID–19;
(c)The appellant’s acceptance of responsibility and insight as indicated by his pleas of guilty which augured well for his prospects of rehabilitation;
(d)Delay. The appellant was interviewed by police in March 2021. He was not charged until February 2022. It was not until December 2022 that there was a committal mention (at which the appellant pleaded guilty) and the appellant was not sentenced until September 2023. It was submitted that the delay from interview to charge was unexplained and that the appellant had had these matters ‘hang over him for a considerable period’;
(e)The content of the Lechner psychological report. The appellant had been diagnosed with Bipolar Mood Disorder in 2013 which led to him taking lithium for eight months or so before ceasing treatment. There was a provisional diagnosis of Bipolar Mood Disorder Type 2 with a strong recommendation of psychiatric review. The appellant had experienced suicide ideation, in particular, after the end of his first marriage in 2013. Ms Lechner opined that the appellant was ‘likely to be severely psychologically distressed’. Ms Lechner also noted that the appellant acknowledged his role in the offending and made ‘no attempt to shirk responsibility’. This, it was submitted, was ‘capable of bolstering a conclusion that there was real and genuine remorse for [the appellant’s] action’;
(f)The fact that the appellant had what was described as a ‘strong claim for further provision from his mother’s estate’. The appellant presented detailed argument to the effect that by application of section 90A of the Administration and Probate Act 1958:
In all likelihood, a claim for provision would have depleted the estate to the detriment of the beneficiaries to a far greater extent that his offending — unsophisticated and entirely unconcealed as it was — did.

The respondent contended, to the contrary, that the sentence imposed in this case was well within range. The respondent acknowledged many of the matters that were relied on by the appellant had been taken into account by the sentencing judge.
It was put, nevertheless, that there was only ‘limited’ evidence of remorse.
At its highest there was the plea of guilty and expressions of regret and an acknowledge (sic) of the offending to Ms Lechner.
The respondent emphasised that there had been no dispute that the offending was ‘objectively serious, involving a breach of trust and fiduciary duty and [had] occurred over a prolonged period of time’. The respondent summed up the appellant’s offending as follows:
The Applicant accordingly stole a total of $171,076.38 from the estate he was entrusted to act as executor for. He made no payments in restitution, although the bank had reimbursed the estate the amount of $128,131.58.
The respondent submitted that a term of immediate imprisonment was ‘inevitable given the seriousness of the offending and the need for general deterrence, denunciation and just punishment’.
The respondent submitted that this Court should reject the appellant’s submission to the effect that a claim for provision by the appellant from the estate would likely have succeeded. It was put that no such case had been made in the sentencing court, and the contention was speculative in any event.

Consideration

The judge’s statement impugned under ground 1 bears repeating. It was as follows: ‘I consider, and find, that a breach of trust of the duties of an executor and trustee of a will to be of equal seriousness to breaches committed by professionals of their duties’.[10] This statement certainly invites scrutiny. But whether the impugned statement constitutes material error ought, as the respondent contends, be determined against the context of submissions that were made to the judge on the plea.
[10]Reasons, [17].
On the plea, defence counsel conceded that his client had offended in breach of trust owed to the deceased and the beneficiaries under the will. Nevertheless, it was submitted that the appellant’s breach was of a lesser order than if it had been committed by, say, a solicitor or an accountant. But, crucially, this difference was explained by defence counsel in the following manner:
DEFENCE COUNSEL: In my submission the nature of the breach or the degree is different to someone that’s engaged in a professional capacity.
HIS HONOUR: I don’t know about that. I wouldn’t accept that.
DEFENCE COUNSEL: The reason for that is that in those roles the person is holding themselves out to obtain that role, and then is using that role to facilitate the transactions. Here the transactions aren’t facilitated by [the appellant]. For example signing the cheques as executor, whereas, say for example a financial controller who is able to authorise payments by virtue of that role, that involves a greater degree of the breach of trust.[11]
[11]Emphasis added.
It is unclear precisely what counsel meant by ‘roles’ or the phrase ‘obtain that role, and then use that role to facilitate the transactions’. In context, it would seem that counsel’s use of the term ‘role’ or ‘roles’ was meant to denote a person’s professional capacity, say as solicitor or accountant. Thus the point of distinction that counsel was seeking to clarify was that, unlike in the instance of a lay executor, the professional — who also acts as executor — holds themselves out relevantly as a professional capable of performing that particular role.
Defence counsel continued on. In further clarification, he sought to distinguish the role of his client from that of a bookkeeper.
DEFENCE COUNSEL: For example, a bookkeeper who’s able to authorise the payments to themselves by saying to the bank, ‘I’m the bookkeeper, I’m authorised to make this transaction’.
HIS HONOUR: He’s essentially done that, hasn’t he? He signs cheques in his mother’s name.
DEFENCE COUNSEL: Well, not using his role as executor though.
HIS HONOUR: No.[12]
[12]Emphasis added.
At this point it appears that counsel sought to place his client’s actions, at least insofar as they amounted to signing cheques in his mother’s name, beyond even the appellant’s role as executor.
Later, defence counsel made reference to an earlier sentencing decision delivered by the sentencing judge — the case of Carley.[13] Defence counsel emphasised that in that case the offender was both an accountant and executor and therefore the offending was more sophisticated. The following exchange took place.
[13]DPP v Carley [2021] VCC 1897 (‘Carley’).
HIS HONOUR: Yes, I don’t – I don’t think you have to have a – I don’t think the profession – it seems to me that the status of a executor and trustee equals the status of a profession.
DEFENCE COUNSEL: What difference —
HIS HONOUR: It’s a different matter if you’re a solicitor and you — you know takes trust funds, but it’s not far different from an executor who takes the funds of the estate.
DEFENCE COUNSEL: What I’d say is in those cases where they are engaged in a professional capacity, the offending is quite often, for example, with Carley, more sophisticated in that there is steps taken, creation of documents to deceive or keep the offending hidden, like Carley did and in my submission that is more grave offending than the case that’s before Your Honour.
HIS HONOUR: Well, no doubt Carley’s graver by way of time and amount.
DEFENCE COUNSEL: Yes, and also in my submission, the conduct itself his role.
HIS HONOUR: And more sophisticated.
DEFENCE COUNSEL: And more sophisticated, that’s right.
HIS HONOUR: I’ll accept that.
Therefore, as it was put on the plea, the point that defence counsel sought to make, clearly, was that his client’s illegal acts were less serious than if similar activity had been carried out by a professional such as a solicitor or accountant. But the basis for the distinction was that a professional holds him or herself out as able to assume the role of executor and then performs that role in that capacity; in so doing, the professional cloaks the relevant acts with authority.
Rehearsal of the submissions made at the plea reveals, in fairness to the sentencing judge, that it was never suggested to the judge — or, if so, only very obliquely — that the relevant point of distinction existed in the conferral by ‘society’ or the ‘community’ upon the professional of special rights or privileges the breach of which was ‘apt to erode public confidence’ in the relevant profession more generally.
But with all of this in mind, it is convenient to examine the broader context in which the judge’s impugned statement was made insofar as that statement takes its place in the Reasons more generally. The judge said as follows:
As to each criminal breach of trust set out in these four charges, [defence counsel] sought to discriminate each from a breach of a professional, such as an accountant or solicitor, as demonstrated in DPP v Carley [2021] VCC 1897, which was a sentence of mine, where Mr Carley, was not only an executor but also performed the role of an accountant for the estate and in that capacity prepared false accounts to hide his thefts from the estate.
Having considered the submission, I do not accept it. I consider, and find, that a breach of trust of the duties of an executor and trustee of a will to be of equal seriousness to breaches committed by professionals of their duties. Clearly differences can be found as to the degree of such breach, as for example in Carley where, for eight years he sought to hide his thefts by preparing the accounts for the estate.[14]
[14]Reasons, [16]–[17] (emphasis added).
Strictly speaking, if the judge’s impugned statement is to be interpreted as nothing more than a rejection of the precise submissions that were made to him on the plea concerning the point of difference that was said to exist between a lay executor in the appellant’s position and a professional, then it is somewhat difficult to conclude that material error has occurred. This is so because, to adopt what defence counsel said on the plea, the appellant did — at least in one sense — hold himself out as executor (by failing to renounce that role as well as by telling the other named executor that he had been advised to apply for probate on his own) and then utilise that role (by failing to obtain probate) as a means of committing the offences.
If, on the other hand, the judge had in mind more than simply rejecting precisely what had been put on the plea then, to the contrary, it is difficult not to conclude that material error has occurred. This is so because had the appellant been acting as nominated executor in the professional capacity of, say, a qualified solicitor then the appellant’s offending would thereby have been aggravated in virtue of the sort of considerations described by King CJ in the case of SA Police v John.[15] In that case, the former Chief Justice observed as follows:
This Court has stressed on many occasions in the past the gravity of offences involving dishonesty committed in the course of legal professional practice. As an example, I cite Hunter (1984) 36 SASR 101, in which I said at 102:
‘The fact that a trustee is a solicitor, a member of a profession on the integrity of the members of which the public is entitled to rely unreservedly, has always been held by courts to be a grave matter of aggravation of a crime of dishonesty committed in the course of professional practice. There is the further circumstance of aggravation that the course of criminal conduct continued over a long period of years until finally detected.’
Those remarks apply to this case. It is essential that the courts impose penalties for crimes of dishonesty committed in the course of legal practice which will operate as a deterrent to other practitioners who might be tempted, by greed or some form of human weakness, to commit similar crimes.
The maintenance of the standards of integrity, which both the court and the public look for in the legal profession demand no less, and indeed, the public demand no less.[16]
[15](1995) 79 A Crim R 510.
[16]Ibid 511.
It appears to have been well accepted that it may be an aggravating feature of criminal offending that the offending was committed by a solicitor[17] or, say, a police officer[18] even in circumstances where it could not be said that any victim of such offending was a person in respect of whom the offender stood in a direct relationship of trust.
[17]R v Fraser [2004] VSCA 147, [29] (Batt JA, Chernov JA agreeing at [50], Vincent JA agreeing at [51]). Like the oath taken by a police officer described in R v Wright (No 2) [1968] VR 174, 181 (Winneke CJ, Gillard and McInerney JJ) (‘Wright (No 2)’), solicitors on admission must make a public oath or affirmation. It has been said in respect of solicitors that ‘[t]he public declaration undertaken in the formal admission ceremony is the starting point upon which the public maintains confidence in our legal system’: Fransisco Esparraga, Ethical Legal Practice and Professional Conduct, Australia, 2019, para 4.5.
[18]Wright (No 2) [1968] VR 174, 181.
The observations of King CJ quoted above are, in a sense, a pithy but powerful recapitulation of the appellant’s case mounted in this Court concerning why it was wrong to place the appellant on an equal footing to a professional such as a solicitor or an accountant.
In the end, and despite the fact that had the appellant offended as a solicitor he might have expected a far greater sentence than he in fact received, we are not convinced that the sentencing judge — in making the statement that has been impugned in this case under ground 1 — did not intend to invest in his assessment of the appellant’s level of culpability the sorts of matters that would apply in the case of a professional such as were described by King CJ in SA Police v John. Of course, those additional considerations described by King CJ would not apply in the instance of a lay executor such as the appellant.
Albeit that defence counsel did not in terms on the plea rehearse the sorts of matters described by King CJ, the fact is that the judge appeared disposed not to accept counsel’s point even before its basis had been explained. In these circumstances, there seems regrettably to be no good reason other than to take the judge entirely at his word.
For these reasons, ground 1 must be upheld.
The upholding of ground 1, and the consequent vitiation of the sentencing discretion, means that — strictly speaking — it is unnecessary to consider ground 2.
Nevertheless, we can indicate that we would not have upheld ground 2. The part of the sentencing reasons impugned under ground 2 appears in the italicised portion of the following extract, taken from the Reasons, set out below. It was at this point in the Reasons that the sentencing judge was disposed to identify the various relationships of trust of which the appellant was said to be in breach. The judge enumerated them as follows:
Specifically, such breach of trust involves firstly a breach of the obligation to his mother who had appointed him to such position pursuant to her will. Secondly, of his obligations to the beneficiaries, two of which were his own sons and, as I have said, two were the sons of his mother’s husband, [the name of the appellant’s mother’s husband], from the first marriage that [the mother’s husband had]. He further breached the trust, in addition to these crimes of which he is charged, in that he apparently failed to prove the will, obtain probate or properly administer the estate.[19]
[19]Reasons, [15] (emphasis added).
Even if, strictly speaking, the appellant owed no duty of trust to ‘prove the will, obtain probate or properly administer the estate’ as a matter ‘in addition to’ the commission of his crimes, we do not consider that in describing matters in the way his Honour did the judge committed material error.
For one thing, given the manner in which the plea was presented, it did not seem as if prior to the grant of probate there was any issue but that the appellant owed a duty to beneficiaries at least to notify them of their status. So much is evident from the following exchange taken from the plea.
HIS HONOUR: Also one of the matters that he didn’t do is advise the [surname of beneficiaries] that they were beneficiaries, which really meant that there was no — he was acting really — I suppose really he’s not only breached the trust from his mother, but he’s breached the trust to the beneficiaries, which include his own two sons.
DEFENCE COUNSEL: That’s accepted, Your Honour. He had a fiduciary duty to them to manage the estate and he hasn’t done that.[20]
[20]Emphasis added.
But in the impugned passage taken from the Reasons we take the judge simply to be referring to the state of affairs that it was necessary for the appellant to bring to fruition in order that he might have the opportunity to offend. In short, the appellant’s deferral of proof of the will and/or his delay in obtaining of probate was a necessary precondition to his ability to steal from the estate. Deferring matters for this purpose was, at least, morally questionable.
As to any reliance on the appellant’s continued right to renounce his role as executor, it is difficult to see in this case how this right might have endured in spite of the appellant’s actions. In argument before us the appellant embraced the notion that by pilfering from the deceased’s estate the appellant had relevantly ‘intermeddled’ with the estate’s property. Yet it cannot be overlooked that ‘[g]enerally speaking, intermeddling by an executorial nominee evidences an intention to accept executorship and so constitutes acceptance of that office’.[21] The consequence of intermeddling by an executorial nominee has been said to be that:
[i]n line with the law governing renunciation, the intermeddler cannot thereupon renounce executorship; a party who has intermeddled has, it was observed some two centuries ago, ‘taken upon himself the burthen, and acquired the responsibility of an executor’.[22]
[21]G E Dal Pont, Law of Executors and Administrators, at 42–43, para 1.57 (citations omitted).
[22]Ibid.

Re-sentence

Having upheld the appellant’s ground 1, it fell upon on this Court to resentence the appellant assuming that the Court was persuaded that a ‘different sentence should be imposed’.[23] While we were by no means persuaded that the sentence imposed by the sentencing judge was manifestly excessive, we considered that it was open to us to impose a sentence that was somewhat lower in the available range.
[23]Criminal Procedure Act 2009, s 281(1)(b).
Nevertheless, in so doing we highlight, like the sentencing judge, the importance of general deterrence in a case like the present. The facts of the present case reveal that the appellant, as nominated executor, was able repetitively and over a period of years to offend essentially in secret. It may be presumed that there was always going to be a reckoning, but in this case that point was not reached until a significant sum of money had been taken. That the appellant could carry on his dishonest purpose for such a long period without detection means that a message must be sent out into the community that offending of this nature, even committed by a lay executor, may well attract a significant custodial sentence.
Before us it was submitted that affecting the appellant’s moral culpability was the fact that the appellant had essentially been unfairly disinherited by his mother. It was put that not only did the appellant have a strong moral claim to the money that he took but that he would also have had a strong legal claim for provision under the will by application of the terms of the Administration and Probate Act 1958.
There was in this case, as the appellant’s counsel frankly conceded before us, a paucity of evidence to support any such claim.
In this case the appellant, with knowledge that he was a named executor under the will and having told the only other nominated executor (who mostly resided overseas) that he had been advised to apply for probate on his own, did nothing concerning his mother’s will for more than two years.
Over that period it is fair to say that the appellant used his mother’s estate essentially as a bank in order to fund his lifestyle. The offending was sustained, repetitive and committed in serious breach of trust. The appellant made no restitution. Such restitution as was made to the estate came about, so it seems, as a result of considerable effort expended by one of the victim beneficiaries. The appellant’s offending even, so it appears, had the consequence of denuding the amount available for inheritance by his own sons.
The appellant had significant matters, described above, upon which he could rely in mitigation.
When all features of this case are taken into account — both aggravating and mitigatory — it appeared to us that there was some scope for a modest reduction in sentence. It was on this basis that we made the orders that we did.

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[2024] VSCA 94

20 May 2024