McNamara v The Queen (No 2)

Case [2021] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

MCNAMARA v THE QUEEN (No 2)

[2021] SASCFC 43

Judgment of The Court of Criminal Appeal  

(The Honourable Justice Nicholson, the Honourable Justice Livesey and the Honourable Justice Bleby)

11 November 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS

The appellant was found guilty by a Judge of the District Court of ten counts of theft, seven counts of aggravated theft and 16 counts of using fabricated evidence in judicial proceedings. The appellant was a solicitor and director of a legal practice, who over a lengthy period of time, purported to invest funds from two deceased estates held in his practice statutory trust account, but instead used those funds for his own purposes. In separate proceedings brought in the Supreme Court relating to the statutory trust account, the appellant filed false documents in an attempt to show that the purported investments were genuine. The appellant was sentenced to nine years imprisonment with a five year and six month non-parole period.

The appellant appeals the sentence on two grounds: firstly, that the sentence was manifestly excessive, and secondly that the judge erred by not giving consideration to a suspended sentence bond with intensive correction conditions or a sentence on home detention.  The question of permission to appeal was referred by a single Judge to the Full Court sitting as the Court of Criminal Appeal.

Held by the Court:

1.Permission to appeal on ground 1 allowed but permission to appeal on ground 2 refused.

2.Appeal dismissed.

3.A head sentence of nine years was within the available range and not manifestly excessive. 

4.Given the seriousness of the offending and the length of the prison term imposed, the options of suspension and home detention could, within a proper exercise of the discretion, be readily dismissed.

Sentencing Act 2017 (SA); Criminal Law (Sentencing) Act 1988 (SA), referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Lutze (2014) 121 SASR 144; R v Howat [2017] SASCFC 41; R v Cavanagh [1999] SASC 418; R v Davies (1996) 88 A Crim R 226; R v Powell [2001] SASC 450; Forsyth v Deputy Commissioner of Taxation [2006] HCATrans 521; R v Bandjak [2011] SASCFC 19; R v Jorquera [2013] SASCFC 145; R v McPhee [2014] SASCFC 107; R v Chisholm (1985) 122 LSJS 230; R v Lean (2017) 128 SASR 451; R v Filiponi (2016) 126 SASR 464, discussed.

MCNAMARA v THE QUEEN (No 2)
[2021] SASCFC 43

Court of Criminal Appeal: Nicholson,…

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McNamara v The Queen (No 2) [2021] SASCFC 43
Case
[2021] SASCFC 43
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CaseChat Overview and Summary

The case of *McNamara v The Queen (No 2)* concerned an appeal against sentence brought by Mr McNamara, a solicitor, who had been convicted of property offences. The appeal was heard by Nicholson, Livesey and Bleby JJ of the Supreme Court of South Australia, Court of Criminal Appeal.

The legal issues before the Court were whether the head sentence of nine years imprisonment imposed on Mr McNamara was manifestly excessive, and whether the sentencing judge had erred in dismissing options of suspension and home detention. These grounds of appeal arose from Mr McNamara's conviction for offences relating to the misappropriation of funds from the estates of two clients, Neil Heanes and Mildred Matthews, which he managed through his legal practice's trust account and a separate Legal Costs Trust.

The Court reasoned that the head sentence of nine years was within the available range for the seriousness of the offending, which involved a significant breach of trust by a legal professional. Given the gravity of the offences and the substantial prison term imposed, the Court concluded that the sentencing judge had properly exercised their discretion in dismissing the options of suspension and home detention, as these were not appropriate alternatives in the circumstances.

Permission to appeal on the first ground was allowed, but permission to appeal on the second ground was refused. Ultimately, the appeal was dismissed, with the Court upholding the sentence imposed.

Orders

Orders of the court

Held by the Court:

1. Permission to appeal on ground 1 allowed but permission to appeal on ground 2 refused.

2. Appeal dismissed.

3. A head sentence of nine years was within the available range and not manifestly excessive.

4. Given the seriousness of the offending and the length of the prison term imposed, the options of suspension and home detention could, within a proper exercise of the discretion, be readily dismissed.

Background

Background to the litigation

For the reasons that follow, we would reject both grounds and dismiss the appeal. Factual basis of and background to the offending The general background to the offending was summarised in the Court’s conviction appeal judgment in the following terms.[2][2] McNamara v The Queen [2021] SASCFC 2 at [7]-[15].Mr McNamara was a solicitor and director of the legal practice, Commercial and General Law. The firm had a statutory trust account. Mr McNamara had also established a trust called the Legal Costs Trust (LCT), for the purpose of enabling clients to invest trust funds. The Trustee of the LCT was Legal Management Consultancy Services (LMCS) SA Pty Ltd.In 2006, an employee of the practice, Ms Helen Roach, drafted wills for two clients, Neil Heanes and Mildred Matthews. Ms Roach was appointed executor in each will. Ms Roach left the employ of the practice in 2008 and moved to New South Wales.The grants of probate and collection of estate fundsNeal Heanes died on 27 May 2011. Mr McNamara advised Ms Roach of this. Ms Roach did not wish to continue to act as executor. Mr McNamara suggested that she renounce her executorship, and that he apply for a grant of probate, as he had been appointed alternate executor in the event of Ms Roach’s death. The Supreme Court, however, refused Mr McNamara’s application for a grant of probate. At Mr McNamara’s suggestion, Ms Roach then applied for probate, having arranged with Mr McNamara that she would continue as executor, but that he would ‘do the work’. Probate was granted to Ms Roach on 29 February 2012. From that time, Mr McNamara acted as her solicitor in respect of the Heanes estate. The estate funds were paid into the statutory trust account of the practice.The estate, worth about $480,000, was the subject of a dispute between Mr Heanes’s four children, to whom it had been left in unequal shares. That dispute was settled by a Deed of Family Arrangement on 17 August 2012. However, Mr McNamara did not then distribute the estate. Mr Jordan of Carpenter and Associates, solicitor for one of the children, began to press him to do so. Mr McNamara told him that he could not distribute the estate funds immediately, as they had been invested pending the resolution of the dispute and could only be paid out once they had matured, or else the estate would suffer ‘break costs’. In response to further pressure from Mr Jordan, Mr McNamara said that he was making enquiries of the ‘investment entity’, the ‘investment manager’ and the ‘funds manager’. He did not identify the entity with which the funds were said to be invested.Mildred Matthews died on 23 December 2012. On 23 January 2013, an employee of the practice, Ms Greiger, who was working under the supervision of Mr McNamara on a restricted practising certificate, emailed Ms Roach (now in Victoria) and made arrangements similar to those in place for the Heanes estate, namely that probate would be granted to Ms Roach and that Mr McNamara would act as solicitor for the Matthews estate. Probate was granted on 14 May 2013. Ms Matthews’ estate was worth about $500,000. She had left small bequests to some friends and the Salvation Army, and the remainder to her niece and nephew, Julie Roberts and Phillip Matthews, in equal shares.Ms Roberts and Mr Matthews were unaware of the bequests until Ms Roberts obtained a copy of the will in the course of an unrelated inquiry relating to a family tree. When they discovered the existence of the bequests, Ms Roberts’ husband, Phillip Roberts, made inquiries of Mr McNamara. Mr McNamara advised him that the firm was awaiting the release of funds from Ms Matthews’ superannuation fund.This correspondence occurred after the grant of probate on 14 May 2013. In fact, some moneys from the Matthews estate had been paid into the statutory trust account in January 2013. In any event, on 30 October 2013, Mr McNamara wrote to Mr and Mrs Roberts in terms which included the following:[3][3] R v McNamara & Pitman [2019] SADC 128 at [38].On being advised of your late aunt’s passing we immediately set about contacting Ms Roach…In late January 2013 we were able to locate Ms Roach who had subsequently moved from northern NSW to Victoria. We were able to obtain her instructions and consent to obtain probate of the Will. As a large portion of the financial assets of the estate had been collected at that time, and given our experience of delays that had been occasioned in the Probate Office, we sought the Executor’s instructions and had the funds that we had in hand invested in term deposits. The Executor has an obligation to preserve and earn interest on the estate if there is going to be an anticipated period of time before Probate is obtained and all the requirements of the Will satisfied before a distribution can take place…I appreciate that you had made inquiries of the content of the Will prior to the date Probate was granted, but until Probate is granted in respect of the Will that was lodged it is not appropriate to comment on its contents as the Probate on that Will may for some reason not be granted or alternatively the Will may be contested. Our office, and more importantly me should have obtained instructions from Ms Roach to advise you of the contents of the Will once Probate was obtained. I apologise for not doing so…In respect to money that has come into the estate, this has been invested in term accounts that mature in January 2014 and will be paid out at the end of January or early February 2014. The fund that it is invested in has been used by Executors on numerous occasions and pays 3% above the RBA cash rate calculated monthly. I have asked for a statement from the funds so that you can see what is invested and what the return is, and we will provide this to you as soon as it comes to hand.On 8 November 2013, Mr McNamara emailed Mr and Mrs Roberts a document headed:Legal Costs TrustOWAA Avestra Credit FundStatement of InvestmentThis certificate purported to record an investment of $465,000 with an ‘anticipated payment on redemption’ of $487,194.63.[4] At no stage in his correspondence with the beneficiaries of the Heanes and Matthews estates, or their representatives, did Mr McNamara mention an entity known as the Andamooka Opal Stone Unit Trust, a trust which was to assume considerable significance in the prosecution.[4] ‘OWAA’ denotes ‘Opal World Andamooka Australia Pty Ltd’. This reference and the reference to ‘Avestra Credit Fund’ are discussed below.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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