McNamara v The Queen (No 2) - [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, Livesey and Bleby JJ
THE COURT
Introduction

After a trial by Judge alone, the appellant was convicted in the District Court of ten counts of theft, seven counts of aggravated theft and 16 counts of using fabricated evidence in judicial proceedings. The maximum penalty, applicable at the time of the offending, for each count of theft is imprisonment for ten years, for each count of aggravated theft, imprisonment for 12 years and for each count of fabricating evidence, imprisonment for seven years. The Judge imposed a single penalty pursuant to section 26 of the Sentencing Act 2017 (SA) of imprisonment for nine years, with a non-parole period of five years and six months commencing from 3 September 2019. The appellant’s appeal against conviction was dismissed.[1] These reasons concern the appeal against sentence.
[1] McNamara v The Queen [2021] SASCFC 2.
In his amended notice of appeal filed 9 April 2020 the appellant relied on the sole ground of manifest excess. Permission was granted during oral submissions to amend the notice of appeal to include a further ground, that the Judge erred by not giving consideration to a suspended sentence bond with intensive correction conditions or a sentence to be served on home detention.
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 funds
Neal 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 Trust
OWAA Avestra Credit Fund
Statement of Investment
This 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.
The prosecution case was that, over the course of 18 months, on 17 separate occasions, Mr McNamara transferred estate funds held in the statutory trust account to a bank account held by the LCT. Those 17 occasions comprise the counts of theft and aggravated theft. Through a series of bookkeeping entries, the funds in the LCT were recorded as having been invested in interest bearing deposits with or loans to an outside entity controlled by clients or associates of the appellant.[5] At all times the funds remained in the account of the LCT but their ownership was thus “rebadged”. The outside entity thereupon “instructed” the appellant to disburse its LCT funds in various ways including for the payment of legal fees due from the entity to the appellant. The appellant used the funds for his own business purposes, including payments for staff, and personal purposes, including payment towards his house mortgage.
[5] The scheme was extremely elaborate and is described in more detail in the conviction appeal judgment.
In this way, the first 12 transfers representing the ten counts of theft and first two counts of aggravated theft served to exhaust the Heanes estate funds by August 2012.
On 14 January 2013, approximately $280,000 of Matthews estate funds was paid into the statutory trust account. On 22 and 23 January 2013, the appellant transferred sums of $170,000 and $100,000 from the statutory trust account to the LCT. On 5 June 2013, the appellant repeated this process with respect to a further $160,000 from the Matthews estate. These three tranches were used to reconstitute the Heanes estate funds and the three withdrawals from the Matthews estate are the subject of the aggravated theft counts 13, 14 and 15.
Counts 16 and 17 related to further withdrawals from the Matthews estate of $25,000 and $10,000 respectively, both in July 2013.
After receiving a complaint, the Law Society of South Australia sought to appoint a supervisor to the statutory trust account. The appellant commenced proceedings in the Supreme Court seeking an injunction preventing the appointment. Both he and a co-accused[6] filed affidavits in support of the application. The appellant’s affidavit exhibited a letter which asserted that the funds in the two estates had been invested. The letter is the subject of count 18.
[6] The co-accused was found not guilty of the offending alleged against him.
The appellant filed a further affidavit on 23 January 2015. Exhibited to this affidavit were documents entitled “Certificates of Investment”. These documents, together with the letter, were the subject of the 16 counts of using fabricated evidence (counts 18 and 20 to 34). There was no dispute that the appellant had created the Certificates of Investment himself. The prosecution case, with which it succeeded, was that the investments they purported to certify were not genuine investments.
The trial Judge found, confirmed on appeal, that:
(i)the letter and 15 certificates exhibited to the appellant’s affidavits were fabricated;
(ii)the appellant stole $850,000 from the two estates;
(iii)money stolen from the Matthews estate was used to replace moneys stolen from the Heanes estate;
(iv)the balance owing to the Matthews estate was, in time, repaid by the Law Society’s Fidelity Fund.
The appellant’s personal circumstances
The appellant was 64 years of age at the time of sentencing. He is married and has two children. The appellant has been a practising solicitor for all his working life, including with the Law Society. He has no prior convictions.
The appellant submitted 49 character references. These references speak of a loving and devoted father who contributes to the children’s school activities and who has a commitment to the environment. The Judge noted that the appellant has lost his reputation, his law firm and his house. The appellant’s family has suffered and will continue to do so. The appellant’s wife has a degenerative eye condition which will eventually render her blind and he has a disabled sister whom he assists.
The appellant has a history of ischaemic heart disease, high cholesterol and high blood pressure. He has occasional hip and lower back pain, possibly caused by degenerative change in the lumbosacral spine. There was nothing before the sentencing Judge to suggest that these conditions could not be managed in prison.
The Judge’s approach to sentence
The Judge fixed a head sentence of nine years imprisonment, to commence 3 September 2019, the day on which the appellant was taken into custody. The appellant was convicted at trial, thus there was no basis for the Judge to give a guilty plea reduction.
The Judge categorised the offending as very serious; it was sustained and involved gross breaches of trust as both a solicitor and trustee. The appellant also deceived Ms Roach, fellow practitioners and, with respect to the fabricating evidence charges, the Supreme Court whilst an officer of the Court. The Judge reiterated that general deterrence is an extremely important sentencing consideration in cases such as this one where persons in positions of trust breach that trust. His Honour accepted that personal deterrence was of less importance in the appellant’s circumstances.
His Honour inferred that the offending must have caused an enormous amount of anxiety and distress to the principal victims. The appellant showed no remorse and that there was no evidence provided to the Judge to explain the appellant’s behaviour in committing the offences.
Appeal ground 1 – manifest excess
In the eponymous R v Karnage,[7] Nicholson J summarised, with reference to leading authorities, the approach to be taken by an appellate court to a complaint that a sentence is manifestly excessive.
The assertion of manifest excess requires an appellate court to review the discretionary decision made by the sentencing Judge. The principles of such a review are well established. It is not sufficient for an appellate court to conclude that it would have come to a decision different to that reached by the Judge. Rather, it must be established that the Judge came to a decision that is unreasonable or plainly unjust.[8] In R v Morse,[9] King CJ identified the following as relevant considerations.
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
Whilst consideration will need to be given to all of the matters that are relevant to fixing a sentence, as the High Court has observed in Hili v The Queen[10] by its very nature a conclusion of manifest excess or for that matter manifest inadequacy is one that does not admit of lengthy exposition.
[7] [2019] SASCFC 82 at 87 (Kelly and Hinton JJ agreeing).
[8] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, see also Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25].
[9] (1979) 23 SASR 98 at 99.
[10] [2010] HCA 45; (2010) 242 CLR 520 at [59].
Whilst arguing this ground, counsel for the appellant submitted that the sentencing Judge had either overlooked or placed insufficient weight on a number of considerations relevant to sentence. During argument, counsel was allowed the opportunity to amend the grounds of appeal leading to the inclusion of ground 2. No amendment to assert that the Judge failed to have regard to a relevant consideration (or took into account an irrelevant consideration), that is, a so called process error, other than that reflected in appeal ground 2, was pressed. In any event, having reviewed the sentencing remarks, we are not persuaded by any criticisms in this respect. The question of whether sufficient weight was given to any of the considerations referred to by counsel is really to be subsumed within the complaint that the sentence is manifestly excessive.[11]
[11] R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144.
In this respect, counsel relied on the following matters as mitigatory and indicative of a sentence of imprisonment for nine years being manifestly excessive in the circumstances:[12]
(i)the appellant’s prior good character and lack of criminal antecedents;
(ii)the appellant’s personal circumstances, including his relatively advanced age at the time of sentencing (64), his ill health and his family responsibilities;
(iii)the appellant’s good prospects for rehabilitation and the unlikelihood of his reoffending;
(iv)the possibility, acknowledged by the trial Judge,[13] that the appellant may have intended to repay the transferred moneys at some time in the future;
(v)the offending was not motivated by greed in the sense of furnishing a lavish lifestyle; the moneys were used to pay practice and personal expenses;
(vi)the fact that restitution was made by the appellant with respect to the Heanes estate funds and that, whilst the Matthews estate funds were only restored from the Fidelity Fund, that fund was able to recoup some of its loss from fees due to the appellant’s practice and called in by the supervisor installed by the Law Society;
(vii)whilst the total amount of the 17 counts of theft and aggravated theft was $850,000, once the Heanes estate had been reimbursed, the total loss was $465,000; and
(viii)in all the circumstances, the sentence fell outside the available range when consideration is given to penalties imposed in a series of earlier broadly comparable cases.
[12] This list of mitigating factors is taken from the appellant’s written submissions prepared before the conviction appeal and his oral and supplementary written submissions provided after the conviction appeal.
[13] R v McNamara [2019] SADC 128 at [115].

It can be accepted that the matters in (i), (ii), (iii), (iv), (v) and (vii) are relevant considerations.
In cases such as this one, the issue in (i) of prior good character ordinarily will carry little weight.[14] By contrast, the consideration in (ii), the appellant’s personal circumstances, in particular, his age, his medical problems, his wife’s medical concerns, his responsibilities with respect to his disabled sister, and the extra curial punishment being loss of the law firm, the house and his reputation already suffered, warrants being accorded significant weight, as does the consideration in (iii). Considerations (iv) and (v) self-evidently carry little weight.
[14] 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.
As far as (vii) is concerned, whether the focus is on $850,000 or $465,000 a very large ultimate loss of other people’s money was sustained. Further, the loss was reduced only by dint of committing further offences and stealing from (and transferring the loss to) another estate. When considering what, if any, weight is to be given to this fact, one is reminded of the aphorism of Gleeson CJ[15] that “there is a limit to the extent to which the wheels of justice can grind fine”.
[15] Forsyth v Deputy Commissioner of Taxation [2006] HCATrans 521.
The considerations in (vi) and (viii) deserve a little more attention.
The question of restitution, consideration (vi), in theft cases can be a vexed one. On the one hand it is to be encouraged. What use is a prison sentence to the victim? From their perspective, the law should primarily be directed at restoring their loss. Further, acts of restitution can be genuinely indicative of contrition and rehabilitation. On the other hand, the law should not countenance circumstances of purchasing a reduced sentence with the possibility of advantaging those with means (who often steal out of greed) over those without means (who often steal out of need).
The relevant principles were summarised by White J in R v Bandjak.[16]
[16] [2011] SASCFC 19 at [80].
The significance to be attached to actual steps taken by a defendant to make reparation, and to offers to take such steps, have been discussed in several authorities (both before and after the enactment in 1988 of the Sentencing Act). The relevant principles can be summarised as follows:
1.The making of restitution is always a relevant matter (R v Wirth[17]) and is mitigatory. This Court in R v Robertson[18] spoke of the significance of restitution in the following passage:
[17] (1976) 14 SASR 291 at 294; Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404; Matulich v Police [2007] SASC 440. See also R v Stubberfield [2010] SASC 9 at [18]-[21]; (2010) 106 SASR 91 at 98-9.
[18] (1984) 115 LSJS 51.
[Full restitution] is a very important fact from more than one point of view. It means that the persons who have suffered loss as a result of the crimes will be restored to the position in which they were before they lost their money and will have suffered only to the extent of any inconvenience and emotional upset which was caused to them and any interest which they might lose as a result of not having the use of the money.[19]
[19] Ibid at 53 (King CJ with whom Zelling and White JJ agreed).
2.It is the consistent policy of Courts to encourage the making of restitution: R v Afford;[20] SA Police v John.[21]
[20] Unreported, Supreme Court of South Australia, Court of Criminal Appeal, CCA No 8 of 1984 (King CJ).
[21] (1995) 181 LSJS 20 at 22.
3.Apart from providing some reparation to the victim, and being an indication of contrition, restitution out of the defendant’s own resources also means that he or she has not profited from the crime: R v Afford.[22]
4.The making of restitution will usually be evidence of remorse: R v Wirth.[23] In particular, a defendant’s willingness to work long hours and to assume heavy burdens in order to make reparation will usually be good evidence of remorse: R v Wirth.[24]
5.There are limits on the extent to which leniency should be granted when a defendant’s family or friends assist in making the restitution because, in such circumstances, there may simply be a shift of the burden of the crime from the original victim to persons other than the defendant: R v Jennings;[25] R v Wirth.[26]
6.However, the fact that others are willing to supply the funds used in making restitution does not mean that the reparation is of no significance in the sentencing. The making good of the victim’s loss is an important factor and the fact that others are prepared to do this may speak in favour of the defendant’s intrinsic worth: R v Wirth;[27] SA Police v John.[28]
7.Courts should be alert not to permit defendants in effect to buy, or appear to buy, suspension of a term of imprisonment by making, or by offering to make, reparation for their offence: Cox v Betts;[29] Kovacevic v Mills.[30] In R v Allen[31] McMurdo P spoke of this consideration saying:
Whilst courts would never allow wealthy offenders with the capacity to pay compensation to buy their way out of an appropriate custodial sentence, restitution is, as the respondent concedes, a relevant mitigating factor in that it compensates the victim and benefits society and is often, as here, a tangible demonstration of genuine remorse.[32]
8.Courts view offers made for the first time during the course of sentencing submissions to make restitution with some circumspection. Stanley J (with whom Wanstall and Stable JJ agreed) in the Queensland case of R v O’Keefe said:
It would be of the worst example if any sentence induced or tended to induce a belief that offenders would escape punishment if, when convicted, they made or offered to make restitution. Offenders cannot bargain with the court, and, in effect buy themselves out of sentences.[33]
Nevertheless, as the decision in O’Keefe itself shows, if the Court is satisfied about the genuineness of the offered restitution it may be a very relevant consideration in the sentencing.[34]
9.In an appropriate case it may be appropriate for a court to defer sentencing so as to permit a defendant to make good an offer made in the course of the sentencing submissions by paying into court the amounts necessary to make proper restitution. The circumstances (described by Debelle J as “unusual circumstances”) in Radjevic v Police[35] provide an example.
[22] Unreported, Supreme Court of South Australia, Court of Criminal Appeal, CCA No 8 of 1984 (King CJ).
[23] (1976) 14 SASR 291 at 294.
[24] Ibid.
[25] (1996) 187 LSJS 222 at 226.
[26] (1976) 14 SASR 291 at 295.
[27] Ibid at 295.
[28] (1995) 181 LSJS 20 at 22.
[29] Unreported, Supreme Court of South Australia, No 2671 of 1984 (Olsson J).
[30] [2000] SASC 106 at [81]; (2000) 76 SASR 404 at 421.
[31] [2005] QCA 73.
[32] See also R v Sheehan [2007] QCA 409.
[33] [1959] Qd R 395 at 400.
[34] Ibid at 401.
[35] (1997) 67 SASR 478.
The circumstances in this case bearing on the question of restitution are unusual. The evidence does not establish on the balance of probabilities that the theft from the Matthews estate to reimburse the Heanes estate was a genuine act of contrition; to the contrary, it was in response to pressure being exerted by the beneficiaries of the Heanes estate and deployed as a means to cover up the thefts from the Heanes estate. As a matter of principle, the law should not countenance reimbursement, achieved by committing further acts of theft and in order to cover up earlier criminal offending, as in any way indicative of contrition and rehabilitation. Similarly, the reimbursement of the Matthews estate from the Fidelity Fund does the appellant no credit at all, nor does the fact that this time the appellant, himself, may have ultimately contributed to the reimbursement of the Fidelity Fund. We say may have contributed, because the Court has not been provided with any particulars of the extent, if at all, that fees called in to the practice have been paid to the Fidelity Fund.
In any event, at no stage has the appellant willingly involved himself in the “restitutionary” process. It may be that the appellant has been compelled to contribute but that is not the same as engaging in a genuine act of contrition and rehabilitation. Furthermore, the appellant maintains his innocence and, it must be inferred, sees no occasion for contrition and rehabilitation.
In this case, the acts of restitution relied on by the appellant only assume relevance in the sense that the losses suffered by the direct victims have been recouped, although the extent to which the $460,000 loss to the Fidelity Fund has been reduced is unknown. To this extent, the consequences of the appellant’s offending are less serious than they otherwise might have been.
With respect to consideration (vii), the appellant drew the Court’s attention to the sentences imposed in a number of other cases involving multiple theft counts in support of the contention that his head sentence was outside the available range.[36]
[36] R v Davies (1996) 88 A Crim R 226, R v Powell (2001) 81 SASR 9, R v Jorquera [2013] SASCFC 145, R v McPhee [2014] SASCFC 107 and R v Howat [2017] SASCFC 41.
The appellant contended that on a review of these cases, the appellant’s sentence was severe. That the exercise of comparing sentences will be of limited utility and the reasons for that are well understood. In any event, the cases relied on by the appellant when examined closely do not lend support to the contention that the head sentence in this case was outside the range available.
The case most strongly relied on was R v McPhee.[37] It is true that McPhee involved a larger number of offences and a very much greater amount stolen. The appellant in that case, like the present appellant, had compelling personal circumstances. But there were material differences in the respective circumstances of their offending. Ms McPhee was a 33 year old financial adviser who had been appointed as trustee and manager of two substantial settlement sums on behalf of two personal injury victims. The appellant was an experienced solicitor of more than 30 years standing; he had previously worked for the Law Society and was well familiar with his trust accounting obligations and the extremely high standards of probity expected of a solicitor. Furthermore, the appellant engaged in an additional tranche of offending (fabricated evidence) designed to deceive the Supreme Court and to cover up his theft offending. As it happened, in McPhee the Court, on appeal, reduced the starting point before allowing a discount for plea from 16 years to 13 years, still four years more than the appellant’s head sentence. In our view, McPhee offers no assistance to the appellant’s argument.
[37] [2014] SASCFC 107.
Thus far we have focussed on the matters said to support the contention that the sentence imposed was outside the available range. The other side of the ledger must not be overlooked. King CJ in R v Chisholm,[38] described in general terms the approach to be taken by a court when sentencing for criminal conduct involving serious and repeated acts of dishonesty.
[38] (1985) 122 LSJS 230 at 232.
The systematic course of dishonesty undoubtedly calls for a substantial sentence and there is, moreover, the important aspect of deterrence. The courts have a responsibility to impose sentences upon those who abuse the trust which is placed in them which will operate as a deterrent to others in a position of trust who might either for psychological or any other reason experience the temptation to take what does not belong to them.
Factors in this case, relevant to the gravity of the offending and the consequential need for a severe sentence and one which promotes general deterrence, include:
(i)the lengthy course of the appellant’s conduct;
(ii)the amount stolen - $850,000 across two deceased estates;
(iii)the fact that the offending was facilitated by the appellant acting as solicitor and trustee, thus involving significant and ongoing breaches of trust;
(iv)the pre-planned, complex system employed designed to avoid detection;
(v)the fact that the Matthews estate thefts took place expressly to cover up the Heanes estate thefts;
(vi)the fact that the fabricating evidence offences were engaged in to deceive the Supreme Court and to cover up the theft offending;
(vii)the lack of contrition or acceptance of culpability;
(viii)the fact that there was nothing before the sentencing Judge to mitigate the offending by way of explanation for why the appellant acted as he did; what was the reason for his decision to steal in order to pay personal and business expenses.
When the factors identified by King CJ in Morse are attended to, a head sentence of nine years was well within the available range. Counsel for the prosecution put the position succinctly, and in a way more consistent with the observation by the plurality in Hili that a conclusion of manifest excess is one that does not admit of lengthy exposition, than we have been. There are a multitude of ways in which the single penalty of nine years might have been arrived at. However, it would be open to allow substantial concurrency with respect to 17 separate sentences for the theft and aggravated theft offences, each of which carries a maximum penalty of imprisonment of 10 or 12 years. If so, a sentence of seven years for that group of offences would not be manifestly excessive (and only a shade over 50 per cent of the starting point in McPhee). Similarly, substantial concurrency with respect to 16 separate sentences for the fabricating evidence offences also would render a two year sentence for that group of offending unobjectionable from a defence perspective. It would be within the available discretion to order that these two sentences of seven years and two years be served cumulatively.
Counsel for the appellant also submitted, somewhat gingerly, that the non-parole period of five years and six months rendered the sentence manifestly excessive. The non-parole period represents a shade over 60 per cent of the head sentence. In the circumstances of this case, as already outlined, the appellant’s contention is untenable.
Appeal ground 2 – suspension and home detention
At one stage, the appellant submitted that the failure to suspend the sentence or to permit the appellant to serve it on home detention, of itself, rendered the sentence manifestly excessive. However, once the sentence itself is found to be within range, this further contention is tantamount to saying that in the circumstances, the Judge was obliged to suspend or order home detention, that is, the available discretion would not permit otherwise. In other words, the failure to so order was itself unreasonable or unjust in the House v The King[39] sense. This contention is also untenable. Counsel refashioned the argument as a complaint that the Judge erred in failing to consider whether or not to order suspension or home detention.
[39] (1936) 55 CLR 499.
In support of this contention, counsel made a series of submissions in an effort to persuade the Court that by the passage of the Sentencing Act 2017 and the repeal of the Criminal Law (Sentencing) Act 1988 the legislature had expressed an intention that imprisonment to be served on home detention should be more readily available than erstwhile. It is unnecessary to resolve this issue although our strong inclination is to find it to be without foundation.
The Judge revoked the appellant’s bail on the day his Honour delivered his verdicts. During sentencing submissions, the appellant’s then counsel did not submit that a suspended or home detention sentence ought to be considered or could be warranted. Counsel’s ultimate submission was as follows.
I would ask that your Honour can be lenient towards this man … who … has got to the stage now where he’s in custody and no doubt your Honour would place him in custody.
The Judge, without expressly saying so in his remarks on sentence, clearly took the view that nothing short of a term of imprisonment to be served would be appropriate in this case. This was a case where, 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.[40] Where the circumstances of the offending and the offender warrant a head sentence of nine years, any need even to consider home detention could only arise in a case involving the most extraordinary of personal circumstances. The Judge did not err in failing to refer to that which, in our view, was an inevitable outcome.
[40] For the general principles in relation to home detention sentences see R v Lean [2017] SASCFC 101; (2017) 128 SASR 451 at [52]-[66]. For a discussion of the disinclination to allow home detention for long sentences, see R v Filiponi [2016] SASCFC 148; (2016) 126 SASR 464 at [34] in the context of allowing a prosecution appeal against a home detention order for a sentence of four years and nine months duration.
We grant permission to appeal on ground 1, refuse permission to appeal on ground 2 as not being reasonably arguable and dismiss the appeal.