R v Coleman - [2013] VSC 548

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0092

ANTHONY ROBERT COLEMAN

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 OCTOBER 2013
DATE OF SENTENCE:	25 OCTOBER 2013
CASE MAY BE CITED AS:	R v COLEMAN
MEDIUM NEUTRAL CITATION:	[2013] VSC 548

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Criminal law – sentencing – deficiency in trust account – theft – obtain financial advantage by deception – legal practitioner – plea of guilty – misuse of position of trust – Verdins principles 5 and 6 applying – total effective sentence of 5 years’ imprisonment with non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Borg	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr B. Bourke with Mr R. Lawson	Mr A McMonnies

HIS HONOUR:

Anthony Robert Coleman, you have pleaded guilty before me to one count of having a deficiency in your trust account contrary to s 3.3.21 of the Legal Profession Act 2004, one count of theft contrary to s 74(1) of the Crimes Act 1958 and 12 counts of obtaining a financial advantage by deception contrary to s 82(1) of the Crimes Act 1958. It is now my responsibility to sentence you for those offences.

The maximum penalty on the charge of having a deficiency in your trust account is 15 years’ imprisonment. The maximum penalty on the charge of theft is 10 years’ imprisonment and the maximum penalty on the charges of obtaining a financial advantage by deception is 10 years’ imprisonment. Other ancillary orders have been sought against you and I will come to those later. I will begin by explaining the circumstances of your offending.

You were admitted to practise as a barrister and solicitor of this court on 1 July 1998. At the time you committed each of these offences you held a Victorian practising certificate that permitted you to manage trust moneys and practised as a sole practitioner under the firm name ‘Coleman Lawyers’. It appears your practice included conveyancing, wills and estates matters, commercial transactions and criminal advocacy.

In 2001, you were introduced to Eric Charles Smith, for whom you drew a will. Smith appointed a neighbour as his executor and trustee although the will provided that you were to serve as executor and trustee should that person fail or cease to act in her appointed role. The will provided, after a legacy to the neighbour, for the residual estate to be divided between five charitable beneficiaries. It also provided the opportunity for your offending, permitting you to develop a fraud first practiced by creating a false identity and false conveyancing transactions.

In November 2001, you purchased a property in Casterton using a fictitious identity, an investor client ‘Robert Cole’. You established an account at the NAB in Cole’s name and in January 2002, lodged a first home owner’s grant application on behalf of Cole regarding the acquisition of the Casterton property. The application was accepted…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Coleman

Details

AGLC: R v Coleman [2013] VSC 548
Case: [2013] VSC 548
Decision Date: 25 OCTOBER 2013

CaseChat Overview and Summary

In the case of R v Coleman, the appellant was convicted for misappropriating funds from a client trust account, obtaining financial advantage by deception, and misusing his position of trust as a legal practitioner. The case was heard in the Supreme Court of Victoria, where the appellant pleaded guilty to the charges. The legal issues before the court included the appropriate sentence for the appellant's crimes, considering the principles set out in Verdins and the aggravating factors present in this case. The court was tasked with determining the total effective sentence and the non-parole period, balancing the need for punishment and deterrence with the principles of justice and rehabilitation.

The court considered the Verdins principles, which outline factors to be considered in sentencing for breaches of trust by legal practitioners. Principle 5 focuses on the nature and extent of the breach of trust, while principle 6 examines the extent to which the offender has abused their position of trust. The appellant's actions were found to be a serious breach of trust, as he misused his position as a lawyer to commit theft and obtain financial advantage by deception. The court also considered other aggravating factors, such as the appellant's previous history of disciplinary proceedings and the significant harm caused to the victim. After weighing all these factors, the court determined that the appropriate sentence for the appellant's crimes was a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years.

The Supreme Court of Victoria found that the appellant's actions warranted a substantial custodial sentence to adequately punish and deter similar conduct by legal practitioners. The court emphasised the importance of maintaining public confidence in the legal profession and ensuring that those who abuse their position of trust are appropriately held accountable. The sentence imposed reflects the seriousness of the appellant's breaches of trust and the need to protect the community from further harm. The final orders of the court were that the appellant be sentenced to a total effective sentence of 5 years’ imprisonment, with a non-parole period of 3 years.

Orders