R v Duncan

[2019] NSWDC 852

District Court

New South Wales

Medium Neutral Citation:	R v Duncan [2019] NSWDC 852
Hearing dates:	1 November 2019
Decision date:	01 November 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 3 years 9 months. Non parole period of 2 years.
Catchwords:	SENTENCING – Fraud by solicitor. SENTENCING – Relevant factors on sentence – abuse of position of trust – systematic fraud of clients – full reparation made – early guilty plea – prior good character.
Legislation Cited:	Crimes Act 1900
Cases Cited:	Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1 Hili v The Queen (2010) 242 CLR 520 R v Hawkins (1989) 45 A Crim R 430 R v Jafari [2017] NSWCCA 152 The Queen v Pham [2015] HCA 39,: (2015) 256 CLR 550
Category:	Sentence
Parties:	Nigel Ian Duncan (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr S Macedone, Macedone Legal (for the offender) Mr D Coulton, (for Director of Public Prosecutions)
File Number(s):	2018/00380200

SENTENCE – EX TEMPORE REVISED

Introduction

1. Nigel Duncan was born in 1954.  He received an excellent education and support from his family.  He worked, studied and in 1988 was admitted as a solicitor in the Supreme Court of New South Wales.  He practiced as a solicitor, primarily in Wollongong and Shellharbour, until he returned his practicing certificate in November 2017.

2. He returned his practicing certificate in 2017 because it was discovered that he had been systematically defrauding clients of the firm who then employed him. He now stands for sentence today for two very serious offences of dishonestly obtain financial advantage by deception: s 192E 1(b) Crimes Act 1900.  He has adhered to his pleas of guilty today.

3. Those offences each carry a maximum penalty of ten years imprisonment. As a consequence of his crimes Duncan must today be imprisoned.  He will lose not just his liberty but his reputation and most of the things which he valued in his life prior to the commencement of his criminal activity. 

4. Duncan accepted responsibility for his crimes when the matter was before the Local Court.  Reparation has been made in full and he has expressed appropriate remorse and contrition both in evidence and practically.  He will have the full benefit of the utilitarian and other values of his pleas of guilty and his reparation.

Serious fraud offences

5. As a solicitor, Duncan has practiced as an employee, a sole practitioner and in partnership.  In November 2010, he was employed by a local firm working both in their Wollongong and Shellharbour offices.  He practiced predominantly in the areas of property, business, wills and estates.  It is his criminal activity while acting in estate matters that brings him before the Court.  He was the sole executor for some deceased estates. His work in relation to the estates allowed him either access to the funds related to them or enabled him as a respected senior employee to have access to trust accounts. He needed…