R v Elliott

[2002] QCA 170

[2002] QCA 170

COURT OF APPEAL

McMURDO P
  McPHERSON JA
  MACKENZIE J

CA No 325 of 2001 

THE QUEEN

v.

MICHAEL FREDERICK ELLIOTT  Applicant

BRISBANE

..DATE 14/05/2002

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against

sentence was convicted on his own pleas of guilty in the

District Court at Southport.  The offences of which he was

convicted and the sentences imposed concurrently in respect

of them were as follows.  

Count 1, misappropriation with circumstances of aggravation,

being that he acted in breach of trust.  The sentence

imposed there was, as it was in respect of each of these

offences, to be served concurrently, nine years'

imprisonment with eligibility for post-prison community

release fixed at three and a half years.  The applicant was

a solicitor and he defrauded nine of his clients of an

amount totalling $718,000 or thereabouts.

Count 2 was a charge of forgery.  The sentence was, as I

have already said it to be, nine years with the same

eligibility.  In this instance the applicant forged a

variation to a bill of mortgage.

The third count was uttering that forged document.  The same

sentence was imposed.  In that instance there does not seem

to have been any particular loss, although the process was

used to cover up another offence or offences in which the

client lost some $100,000.

The fourth count was again misappropriation with

circumstances of aggravation.  In this instance the victim

was an elderly lady aged 73, who is the aunt of the

applicant.  She appears to have lost a sum of the order of

$300,000.

The gross loss amounted in all to over $1 million, the net

loss to the clients being something over half a million to

$1 million.  No repayment was made by the applicant himself,

but compensation has been paid from the Law Society's

Fidelity Fund to, at any rate, some of the persons who

suffered as a result of count 1 and perhaps the other

counts, part from count 4.

The maximum penalties it should be noticed for these

offences are 10 years for counts 1 and 4 of fraudulent

misappropriation, and 14 years for the counts involved in 2

and 3 of forgery and uttering.  The offences were committed

over an extended period running from approximately 1986 to

1996.

The appeal is based essentially on the ground that the

sentence is manifestly excessive and that there should have

been a greater recognition of factors that ought to have led

to a reduction in the period that would actually be served

by the applicant.  Matters relied on are the applicant's age

at sentence.  He was 65 then and is 66 now; and his very

early pleas of guilty which involved a pleading to an ex

officio indictment:  he cooperated fully to the extent of

assisting the police and investigators unravel the

complications of his fraud.  There was a delay in

prosecuting the offences no doubt brought about in part by

the difficulty of finding out exactly what had happened;

and also, and especially, the applicant's declining health;

and the disability of his wife, whose eyesight is so

seriously impaired that she is practically blind.  He has

been her sole carer and it was reported to us this morning

that she now appears to be suffering from cancer.  Very

clearly her position is one that merits the utmost sympathy;

but it is evident that whatever sentence is imposed in this

case would involve a period of extensive imprisonment during

which the applicant will be separated from his wife and

unable to care for her.

It should also be noticed that the applicant had no previous

convictions prior to this occasion, although, against that,

the criminal offending has been going on for some time.

As I said in respect of the first offence, there were nine

victims.  They ranged in age from about 55 to 84 years. 

They were all elderly people, apart from two, who were,

first, a citizen of Yugoslavia who spoke little English and

might be thought to have had that advantage taken of him,

and, secondly, two men of Chinese origin from Taiwan.  

In respect of the fourth count of misappropriation it is

necessary to mention that the victim there, who I said was

his aunt, was an elderly lady who came for a visit to

Australia in 1991.  On arrival she was in a confused state.  
  She was cared for by another relative, who was also a

nephew, until it became too difficult for him to discharge

this function, and she was then sent to live with Mr Elliot

at the end of that year.  He had a power of attorney over

her affairs and acquired a house, in which he and his wife

looked after the aunt.  The upshot of his use of her funds

appears to have been that she suffered a loss of the order

of $300,000.

It is always a matter for great surprise and regret when a

solicitor of long standing and good reputation like the

applicant in this case is found to have been deceiving his

clients and other members of the profession, in the sense

that everyone supposed that he was behaving as solicitors

should but he was in fact defrauding his clients.  The

explanation for it here is a little hard to find.  He did,

at one stage, become involved in a syndicate that was buying

and selling property on the Southbank area of Brisbane.  He

bought out the other partners in the venture and had a

contract to sell the properties for $5 million, which fell

through.  As a result of these activities Mr Elliot was

adjudicated bankrupt in 1992.  He then succeeded in finding

another partner so that he could continue to practise as a

solicitor after his bankruptcy.  It is perhaps not quite

clear from all the material, but the impression I have

gained is that perhaps some of these offences took place

before he became financially involved in the syndicate,

though most of them took place afterwards.

As I have mentioned, the maximum penalties are 10 years for

counts 1 and 4, and 14 years for counts 2 and 3.  The range

that one can gather from looking at other cases of this

general kind is from seven years, with a recommendation

perhaps after three years, to 10 years with a recommendation

after four years.  The Crown submitted at sentencing that

the range was eight or nine years in this case and, on

appeal, it has argued on the basis of the authorities of

like kind that the range perhaps extends as high as 10

years.  The appellant submits that the sentence should be

seven years with a recommendation for early release after

two and a half years, or perhaps three years, which would

not differ very greatly from the sentence imposed here.  

At the sentence hearing counsel for the defence appears to

have accepted a sentence of the order of eight to nine years

with a reduction for the plea of guilty on the ex officio

indictment.  It was obviously open to his Honour to impose a

head sentence of the order of nine years, as he did, and

make a recommendation for parole, again as he did, at about

three and a half years; or, alternatively, to reduce the

head sentence to, say, seven years leaving the ordinary

processes of parole or, as it is now called, post-prison

community release, to operate at the halfway mark or

thereabouts.  That would have produced much the same result,

if not exactly the same result, as in this case.

One cannot fault the Judge for taking the course he did and,

indeed, it has not been suggested that he was wrong in doing

so.  What is said is that, in view of the special personal

factors, including particularly the sad state of health of

his wife, the applicant's position should have received

greater recognition, or a greater mitigation of his penalty,

by way of an early parole recommendation.

One can only have sympathy for the unfortunate lady who is

his wife; but the fact of the matter is that nothing we can

do to the sentence would bring it so low as to facilitate

the release of the applicant within a time that would enable

her problem to be solved, or to restore him to her side as

her carer.  Regrettably it is not within our power simply to

make arrangements that enable her distress to be mitigated

in this fashion.

The applicant has betrayed his trust and done so to the

extent that other members of the profession are disgraced by

it and are obliged to contribute to the fidelity fund.  In

that way he has affected his more honourable colleagues.  It

would be a mistake, in my opinion, to ignore these factors

in this case, because they will only return to trouble us in

any other case of the same kind, of which, regrettably I

suppose, there will be more in the future.

In all the circumstances, I can see no error in the Judge's

exercise of his discretion either in fixing the head

sentence in this case or in arriving at a parole

recommendation at the level or time at which he did.  It

follows, in my opinion, that the application cannot succeed

and should be dismissed.

THE PRESIDENT:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order is the application for leave to

appeal is dismissed.

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