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

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;

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 Elliott

Details

AGLC: R v Elliott [2002] QCA 170
Case: [2002] QCA 170
Decision Date: 14/05/2002

CaseChat Overview and Summary

The case of R v Elliott involves the applicant, Michael Frederick Elliott, appealing against his sentence following convictions in the District Court at Southport. The offences include misappropriation, forgery, and uttering, committed over an extended period from approximately 1986 to 1996. The applicant, a solicitor, defrauded nine clients of a total amount of around $718,000. The sentences for each offence were nine years imprisonment with eligibility for post-prison community release fixed at three and a half years. The appeal focuses on the argument that the sentence is manifestly excessive and that there should have been greater recognition of factors warranting a reduction in the actual period to be served.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly excessive and whether there was an error in the exercise of discretion by the trial judge in determining the head sentence and the parole recommendation. The applicant argued that factors such as his age at the time of sentencing, his early pleas of guilty, his cooperation with police and investigators, the delay in prosecution due to difficulties in uncovering the fraud, and the health condition of his wife should have warranted a lesser sentence. The Crown argued that the sentence was within the appropriate range for such offences and cited precedents supporting an eight to nine-year sentence.

The Court of Appeal considered the arguments and examined the circumstances of the case, including the nature and extent of the offences, the impact on the victims, and the applicant's background. The Court held that the trial judge had correctly exercised his discretion in imposing the sentence and making the parole recommendation. The Court acknowledged the unfortunate circumstances of the applicant's wife but found that the sentence, while severe, was appropriate given the gravity of the offences and the need to uphold public confidence in the legal profession. The Court concluded that there was no error in the trial judge's decision and dismissed the application for leave to appeal.

The final order of the Court was that the application for leave to appeal is dismissed.

Orders