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
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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,
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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 her. She was sentenced on that basis, that is on the basis of stealing under section 391(2)(f) of the Criminal Code. Mrs Warrington, after making unsatisfactory inquiries from the respondent for money which she had expected to come from the estate, ascertained from another source that it had been paid to the respondent.

When she confronted the respondent, the respondent told her that she had invested the money on Mrs Warrington's behalf. By the time this conversation took place, the respondent knew that the investment had been lost. Even when confronted by the police, the respondent claimed to have invested the money in a sound investment scheme.

When the respondent's affairs were investigated, it was discovered that many of the matters which Mrs Warrington had placed in her hands had not been taken care of. Bills had not been paid and income tax returns had not been lodged. No motive other than greed was ever at least clearly advanced for the respondent's dishonesty.

Although it appears from the report of a clinical
psychologist and a pre-sentence report from Queensland
Corrections that the respondent has had considerable
personal problems in her life, including money problems,
some of which continue, there is no suggestion that she
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had any psychiatric disorder, nor as I said, was there
anything more than a slight suggestion that the
respondent entered into this scheme because of any
urgent or pressing need for funds. The effect of the
loss of money on Mrs Warrington and her husband have
been disastrous. The funds from the estate and the
income on those funds was their only source of income.

Mr Warrington had been obliged to retire from his job as a truck driver and coach captain through poor eyesight and had no superannuation or pension fund. They have had to realise most of their assets to pay debts. In a victim impact statement, Mrs Warrington has described the reduction in their lifestyle from one of relative comfort to one of near poverty. They have three adult children, whom they would have liked to help financially, but no longer can. They have been forced to borrow money from private sources, which they have found embarrassing and against their principles.

It is now nearly three years since the respondent failed
to account for the large sum of money which she
misappropriated. There is no prospect of recovering any
part of this from her; she is now bankrupt. The
prospect of recovering it or any substantial part of it
from the Solicitors' Fidelity Guarantee Fund is far from
certain. The financial consequences of this have caused
Mrs Warrington and her husband considerable worry and
distress. It has affected their sleeping and their
marital relationship.
180699 T16/JJD24 M/T COA138/99

It was said on the respondent's behalf that she was remorseful and she has since this occurred pursued voluntary work. She has the care of two young children, one of whom has some serious medical problems which affect his behaviour. She pleaded guilty and her plea may be accepted as a relatively early one.

It was these factors, apparently, which persuaded the learning sentencing Judge to make the recommendation for early parole which he did. In the Court below, a number of sentences involving solicitors were tendered as comparable. Two of them, Palmer CA No 441 of 1993, judgment delivered 2 February 1994 and Chapple, CA No 461 of 1994, judgment delivered 31 March 1995, were plainly more serious than this and involved much larger sums of money and conduct of greater dishonesty over a longer period of time involving loss to a greater number of people. They are not useful comparisons.

Lory, CA No 170 of 1987, judgment delivered 19 August
1987, is the only case referred to by both counsel
before this Court today. It appears more closely
comparable to this case. There the applicant, a man of
61 years of age, was convicted on a single charge of
misappropriation as a trustee of a little under
$200,000. Mr Devereaux pointed out to us today that the
charge in that case was one under section 436 of the
Criminal Code; fraud as a trustee, involving, as it did,
intent to defraud.
180699 T16/JJD24 M/T COA138/99

He was sentenced to four years imprisonment. The amount taken in that case involved four clients, who had placed money with him for specific investments. The sentence of four years, with no recommendation for early parole, was not disturbed on appeal.

More recently, this Court in Baunach, CA No 88 of 1999, judgment delivered 4 June 1999, considered a sentence of six years imprisonment, with a non-parole period of 12 months, imposed on an accountant for 18 counts of defrauding the Commonwealth contrary to section 29D of the Crimes Act. This Court increased that sentence, by increasing the non-parole period to two years. Because of the contentions that had been made by the Crown below, the Attorney did not contend before this Court for an increase in the six year term. The amount involved in that case was $800,000 and involved a number of different fraudulent schemes over a period of years, which were likely to result in considerable loss to clients of the respondent.

Like this case, it appears to have been motivated
substantially by greed. The respondent in that case,
like the respondent here, had personal problems. The
Court said in that case that the term of six years was
at the lower end of an appropriate range for offences of
the kind considered there. However, the offences
considered in that case were more serious than in this,
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involving as they did calculated and deliberate fraud
over a substantial period of time.

All the cases to which I have referred, involved professional people, either solicitors or in the last case, an accountant, from whom the public are entitled to expect a very high degree of integrity. The maintenance of public trust in such persons demands substantial deterrent sentences for offences of this kind.

That having been said, however, the respondent here was sentenced, as I have said, on the basis that she thought she would earn her clients 100 per cent interest and intended herself to take an additional $30,000 profit. She was sentenced on the basis of section 391(2)(f) of the Criminal Code that she took the money intending to use it and later repay it.

On that basis, although the sentence, on the whole, appears to be towards the lower end of the appropriate range, I cannot be satisfied that it is so low as to be manifestly inadequate and I would therefore dismiss the appeal.

THOMAS JA: I agree. I would add that counsel for the

Crown below contended for a range of four to five years.

In all the circumstances, including the circumstances

detailed by
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Mr Justice Davies in the reasons given by him, I do not
think that it could be held that the sentence, although
a modest one, was outside the range available to the
learned sentencing Judge. I would accordingly dismiss
the appeal.

DEMACK J: I agree with the reasons of Mr Justice Davies and the order he proposes and with the additional comments of Justice Thomas.

DAVIES JA: The appeal is dismissed.

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