R v Chapple

[1995] QCA 73

IN THE COURT OF APPEAL	[1995] QCA 073
SUPREME COURT OF QUEENSLAND	C.A. No. 461 of 1994
Brisbane [R v. Chapple]

THE QUEEN

v.

GREGG LEWIS CHAPPLE

Applicant

Macrossan CJ
Davies JA

Pincus JA

Judgment delivered 31/03/1995

Judgment of the Court

A	PPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED
CATCHWORDS:	CRIMINAL LAW - SENTENCE - Solicitor misappropriated clients'

funds.

COUNSEL:	Mr Herbert Q.C., with him Mr Glynn for the appellant Mr Rutledge for the respondent
SOLICITORS:	Robertson O'Gorman for the appellant

Director of Public Prosecutions for the respondent

HEARING DATE:  20 March 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 31/03/1995

The applicant seeks leave to appeal against a sentence imposed for misappropriation with the circumstance of aggravation that the property involved was of a value of $5,000 or upwards. For the offence with the circumstance of aggravation the maximum term of imprisonment provided by s.408C of the Code is 10 years. Notwithstanding the applicant's plea of guilty the sentencing judge imposed a term of 10 years, the maximum, but he added a recommendation that the applicant be eligible for parole consideration after 4 years.

The offences occurred during the course of the applicant's practice as a solicitor and the amount of the property involved was substantial. Over $1,500,000.00 was misappropriated from a number of clients, the major part of it from one particular client. The net loss at the end of all of the transactions amounted to almost $1,200,000.00. One of the sorriest aspects was that the applicant imposed upon persons who were more than just clients with whom he might have had a relatively impersonal relationship but were friends who probably placed particular reliance upon him and upon the advice he gave. No doubt they would have been particularly susceptible in their acceptance of the false statements and explanations which the applicant gave them from time to time in attempting to disguise his criminal conduct.

The offences continued over a period of some 3 years. In the end, complex and expensive civil litigation was launched resulting from the loss occasioned to one particular client, a man named Romano. That litigation had to be fought through to finality, the applicant behaving in an obstructive manner and endeavouring to disguise the true character of the transactions which he had engineered. The Trial Judge rejected the applicant's account as false and made a number of very adverse comments concerning him and his testimony. On the hearing of his present appeal, both sides joined in placing before the court extracts from the reasons of the judge who had heard the civil litigation.

Over the period that was involved the applicant used the misappropriated funds for various private purposes including business schemes in which he was involved and also expenditure on what was an obvious luxury, a boat, costing some $115,000. There was no indication of any compelling pressures upon the applicant at least at the outset of the wrongdoing and the position simply was that the applicant in disregard of his professional obligation and of the trust imposed by his clients in him elected to take their property for his own ends. When the amount involved is considered in combination with the circumstances of the misappropriation it is seen that the case is a bad one. The breach of professional duty, the exploitation of friendships in a ruthless and selfish way and the determination which he exhibited early on to escape the consequence of his wrongdoing and his continued following of a course which involved pain and distress to others and financially disastrous consequences for them are all aggravating features. The case falls in the category of the most serious examples of offences.

No doubt for this reason counsel appearing for the applicants stated his acceptance of the fact that a sentence at or near the maximum could properly have been imposed. He contended, however, that there were a number of circumstances which called for a parole recommendation earlier than the Sentencing Judge had ordered. He relied upon the applicant's plea of guilty and the substantial degree of rehabilitation that the applicant had achieved after he brought himself to face the consequences of his wrongdoing.

The civil proceedings to which reference has been made were completed at the end of 1991 and in March 1992, a complaint based upon the criminal aspect involved was made. Thereafter the applicant cooperated fully. Notwithstanding his offer to plead guilty in March of 1992, and his willingness to accept that proceedings should follow on an ex officio indictment, it was not until October 1994 that he was sentenced. The submission is made that this delay, for which he was not responsible, is a factor which could attract some sympathetic consideration.

It seems clear enough that the sentencing judge having in mind the plea of guilty and the saving of time and trouble to the authorities and the clients involved could have reduced the head sentence below the prescribed maximum, but it is unnecessary to say anything further about the propriety of such a course. This is because counsel for the applicant specifically abandoned any reliance upon such an argument preferring to contend that the ameliorating factors present should have been reflected in an earlier parole recommendation. The sentencing judge has decided that such favourable factors as were present in the case should be reflected exclusively within the parole recommendation and this approach is not challenged on the appeal.

There is no doubt that the penalty imposed and the consequences of the discovery of the applicant's wrongdoing will have borne particularly heavily upon him. His name was removed from the roll of solicitors in 1989, he not contesting the application brought to that end. Since March of 1992, he has apparently lent unqualified cooperation to the investigation of the offences. The sentencing judge noted the evidence that the applicant was remorseful but observed that the remorse had not taken the form of achieving restoration of the monies appropriated. The same can be said of the evidence of rehabilitation in recent times. While this effort is commendable it involves a choice by the applicant to improve his own unfortunate position and does nothing directly for the victims of his earlier wrongdoing.

Reference was made to the case of Palmer C.A. 441 of 1993 (Judgment February 1994 unreported). In this, another serious misappropriation case, a sentence of 10 years was imposed and a parole recommendation added after 3 years. Palmer however was a case where the maximum penalty imposable for certain uttering offences involved was 14 years. On an appeal by the Attorney-General the parole recommendation was removed it being noted that the head sentence imposed was well beneath the maximum. The decision of the court in Palmer does not compel the conclusion that the sentence imposed in the present case is necessarily excessive.

This court is entitled to interfere only if in its view the sentence imposed is manifestly excessive and it is not possible to come to that conclusion. The application for leave to appeal should be refused.