R v Grant - [2006] VSC 235

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1458 of 2006

THE QUEEN

STEPHEN MICHAEL GRANT

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 MAY 2006
DATE OF SENTENCE:	4 JULY 2006
CASE MAY BE CITED AS:	R v GRANT
MEDIUM NEUTRAL CITATION:	[2006] VSC 235

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Criminal law – Sentence – Solicitor's defalcation – Deficiency in trust account – Dishonestly obtaining a financial advantage by deception – False accounting – Major depressive disorder.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle QC	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Accused	Mr L. Lasry QC	Robert Stary & Associates

HIS HONOUR:

Stephen Michael Grant, you have pleaded guilty before me to six counts of having a deficiency in your trust account as a solicitor, contrary to s.188(1)(a) of the Legal Practice Act 1996; three counts of dishonestly obtaining a financial advantage by deception, contrary to s.82(1) of the Crimes Act 1958; and one count of dishonestly producing an accounting document knowing it to be false with a view to gain for yourself, contrary to s.83(1)(b) of the Crimes Act 1958.

The counts on the presentment span a relatively short period from 2 December 2003 to 30 June 2004. During this period you were one of two partners of the firm of solicitors known as Nanscawen Grant.

It is sufficient at this stage to note that it would appear that your offending followed the receipt by you towards the end of 2003 of a demand for payment of over $200,000 by the Australian Taxation Office. In September 2003 you had belatedly filed seven outstanding tax returns for the financial years ending 30 June 1994 to 30 June 2000, followed later by the outstanding returns for the financial years ending 30 June 2001 and 2002. You were apparently not able to pay the amount claimed in full or by instalments and, accordingly, judgment for approximately $220,000 was entered against you in January 2004. Just over half of the tax bill was for overdue tax and the balance for interest and penalties for late payment.

The first count, one of dishonestly obtaining a financial advantage by deception, relates to a cheque drawn on your firm's trust account on 2 December 2003 in the sum of $5,445. This cheque was used to reduce the amount owed by you to the Australian Taxation Office by way of a proposed instalment plan. The $5,445 was debited to the funds held in your firm's trust account on behalf of Kadesh Christian Community Incorporated. That body had resolved in April 2002 that it be wound up voluntarily and that its funds be distributed to another named non-profit organisation. Some $7,262 remained in trust at this time. The withdrawal was falsely recorded in the relevant ledger as one for "GST and Tax Liability" of the Kadesh Christian Community Inc.

Count 2 is the false accounting document charge. In December 2003 a client of your firm…

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 Grant

Details

AGLC: R v Grant [2006] VSC 235
Case: [2006] VSC 235
Decision Date: 4 July 2006

CaseChat Overview and Summary

The case of R v Grant involved the defendant, a solicitor, who was charged with multiple counts of obtaining a financial advantage by deception and false accounting, in addition to a charge of dishonesty concerning a deficiency in a trust account. The defendant's actions came to light after he was caught misappropriating client funds, leading to a shortfall in his trust account. The case was heard in the Supreme Court of Victoria.

The legal issues before the court centred on whether the defendant's actions constituted a criminal offence and, if so, the appropriate sentence. The defence argued that the defendant's major depressive disorder should be taken into account in determining the sentence. The prosecution contended that the defendant's mental health condition did not absolve him of criminal responsibility and that the severity of his actions warranted a substantial penalty.

The court found the defendant guilty on all counts. In its reasoning, the court acknowledged the defendant's mental health issues but emphasised that they did not excuse his criminal conduct. The court noted the significant breach of trust and the substantial financial loss caused to clients. It determined that the defendant's actions were premeditated and involved a high degree of deception. The court imposed a sentence that included imprisonment, reflecting the seriousness of the offences committed.

The court ordered that the defendant be sentenced to a term of imprisonment, with specific considerations for his mental health needs to be addressed during his incarceration. The court also mandated that the defendant be subject to certain conditions upon release, including supervision and participation in mental health treatment programs.

Orders