R v Linacre - [2014] VSC 615

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0219

The Queen	Plaintiff
v
Philip Linacre	Defendant

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JUDGE:	Warren CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2014
DATE OF SENTENCE:	10 December 2014
CASE MAY BE CITED AS:	R v Linacre
MEDIUM NEUTRAL CITATION:	[2014] VSC 615

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CRIMINAL LAW – Sentence – Multiple counts of obtaining financial advantage by deception – Multiple counts of having a deficiency in a trust account – Continuing criminal enterprise counts – Lawyer misappropriated over $12 million of clients’ money – Plea of guilty – Remorse – Loss of career – Importance of general deterrence, just punishment, denunciation and rehabilitation – Total effective sentence 12 years’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Elston QC	The Office of Public Prosecutions
For the Accused	Mr I Hill QC with Ms O Trumble	Tony Hargreaves & Partners Lawyers

HER HONOUR:

Philip Linacre, you have pleaded guilty to 21 counts of dishonesty and five counts of having a deficiency in a trust account.

You are now 62 years’ of age. You have practised as a solicitor, now referred to as a lawyer, since 1977. In that position you became a trusted legal advisor to a number of clients. While acting in that position of trust you perpetrated a series of serious offences and deceived numerous clients to hand over in excess of $12 million. You have acted in a way that offends the standards that the community, and this Court, expects from legal practitioners.

Background

You were born in Melbourne on 20 May 1952. Your father served in World War II as a member of the RAAF. He also operated a successful plastics company while your mother stayed at home to look after you and your brother. You had a privileged upbringing attending Melbourne Grammar School through both primary and secondary school. As a child you suffered severe asthma and were unable to participate in a number of school activities, including sport. You failed year 12 on your first attempt. However, you persisted and repeated year 12 gaining your Higher Secondary Certificate.

You did not achieve sufficient results in year 12 to enter law school, although you were able to gain entry into the Articled Clerks’ course at the Royal Melbourne Institute of Technology. You were admitted to practice on March 1977. Your counsel informed the Court that from that time you practised mostly on your own, without a mentor. In your early career you entered into a number of partnerships which were not successful. From 1 January 1981 until 20 July 2012 you were in possession of a practising certificate that entitled you to receive trust funds in your capacity as a lawyer.

From October 1998 until you handed in your practising certificate to the Legal Services Board in July 2012 you were the principal of your own firm, its last incarnation being Linacre Lawyers. From that position, beginning in May 2000 you engaged…

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 Linacre

Details

AGLC: R v Linacre [2014] VSC 615
Case: [2014] VSC 615
Decision Date: 10 December 2014

CaseChat Overview and Summary

The case of R v Linacre involved a lawyer who had pleaded guilty to multiple charges of obtaining financial advantage by deception, maintaining a deficiency in a trust account, and engaging in a continuing criminal enterprise. The defendant had misappropriated over $12 million of his clients' funds over several years, leading to a significant breach of trust and professional misconduct. The matter was heard in a higher court, which had the jurisdiction to impose a sentence for the serious and repeated nature of the crimes.

The court was required to determine an appropriate sentence that balanced the principles of general deterrence, just punishment, denunciation, and rehabilitation. Given the gravity of the offences, the court needed to consider the total effective sentence that would adequately reflect the seriousness of the crimes while also taking into account factors such as the defendant's remorse, the loss of his legal career, and the impact on his family. The court also had to consider whether a concurrent or consecutive sentencing approach was more appropriate for the overlapping nature of the offences.

In reaching its decision, the court acknowledged the defendant's genuine remorse and the personal and professional consequences he had faced since the crimes were uncovered. However, the court emphasised the paramount importance of general deterrence and the need to send a strong message to the legal profession and the public about the consequences of such breaches of trust. The court found that a total effective sentence of 12 years' imprisonment was necessary to achieve these objectives, with the sentence to run concurrently to ensure that the defendant did not face an unduly harsh penalty for the overlapping nature of the offences.

The court ordered that the defendant be imprisoned for a total effective term of 12 years, with the sentence to run concurrently on all counts. The defendant was also ordered to pay restitution to his victims and to be disqualified from practising law for life. The court made it clear that the sentence was intended to serve as a strong deterrent to others who might be tempted to engage in similar conduct.

Orders