R v Marsden - [1999] QCA 237

99.237

COURT OF APPEAL

DAVIES JA THOMAS JA DEMACK J

CA No 132 of 1999
THE QUEEN
v.

ELEANOR MARSDEN	(Respondent)
and
ATTORNEY-GENERAL OF QUEENSLAND	(Appellant)

BRISBANE
..DATE 18/06/99
180699 T16/JJD24 M/T COA138/99
DAVIES JA: The respondent pleaded guilty in the
District Court on 9 November last, to a charge of
stealing a sum of over $500,000, with a circumstance of
aggravation, that circumstance being that the value
exceeded $5,000. The maximum penalty for that offence
was, at the relevant time, seven years imprisonment. It
is now 10 years imprisonment.

On 19 March last, she was sentenced to four years imprisonment, with a recommendation that she be considered to be eligible for parole after serving one year. The Attorney-General appeals against that sentence. At the time of commission of the offence, which was on or about 20 May 1996, the respondent was a solicitor practising on her own account.

She was then 50 years of age, having been born on
10 November 1945. She had no prior criminal history.
The money which the respondent stole was the property of
one client, a Mrs Warrington. It was part of her
interest in the estate in the administration of which

the respondent was acting in Mrs Warrington's interest.

Mrs Warrington had become a client of the respondent
some nine or 10 years earlier. Shortly after she
commenced acting for Mrs Warrington, the respondent
obtained for her an interim payment of a substantial sum
out of the estate. This caused Mrs Warrington and her
husband to repose considerable trust in the respondent,
180699 T16/JJD24 M/T COA138/99
perhaps even more than one would ordinarily expect a
client to repose in her solicitor.

Over the ensuing years a total of $1.5M was paid into the respondent's trust account on behalf of Mrs Warrington. During that time, Mrs Warrington and her husband trusted the respondent implicitly in her affairs, not just her legal affairs, but in paying bills and purchasing property on her behalf and in looking after her taxation affairs, including the preparation of her tax returns. As it turned out, this trust was misplaced.

For some reason which has not been satisfactorily
explained, the respondent became involved with an
organisation in the Bahamas called the Vienna Group
International, a body which promised substantial profits
from investment. Whatever the explanation for her
involvement was, it was conceded by the prosecutor below
that the respondent believed that any investment made

with that group would be returned with interest.

Without any authority from Mrs Warrington or her
husband, the respondent paid nearly $600,000 of money
which she held on Mrs Warrington's behalf to the Vienna
Group International. Unsurprisingly, both it and the
principals of the group disappeared. It appears always
to have been the respondent's intention to appropriate
to herself part of the profit which she hoped to make on
this investment.
180699 T16/JJD24 M/T COA138/99

However, her intention was to return the capital sum and some interest to Mrs Warrington when it was also returned to…

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 Marsden

Details

AGLC: R v Marsden [1999] QCA 237
Case: [1999] QCA 237
Decision Date: 18/06/1999

CaseChat Overview and Summary

In the case of R v Marsden, Eleanor Marsden, a solicitor, was sentenced to four years imprisonment for stealing over $500,000 from her client, Mrs Warrington. The Attorney-General of Queensland appealed the sentence, arguing it was inadequate. The key legal issues were the appropriate range for sentences involving professional misconduct and the consideration of mitigating factors. The Court of Appeal examined previous cases involving similar offences by professionals and found Marsden's sentence to be within the appropriate range. Despite the significant impact on the victims, the court decided that the sentence was not manifestly inadequate and dismissed the appeal.

The Court of Appeal considered the nature of the offence, the role of trust in professional relationships, and the necessity for deterrent sentences to maintain public confidence in professionals. Marsden's personal issues and remorse, as well as her early guilty plea, were noted as mitigating factors. However, the court emphasised the importance of substantial deterrent sentences for professional misconduct. The sentence, though modest, was deemed to fall within the range available to the sentencing judge. Therefore, the appeal was dismissed.

Orders