R v McLean
[2002] VSC 35
•26 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1400 of 2002
| THE QUEEN |
| v |
| PETER NORMAN MCLEAN |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2002 | |
DATE OF SENTENCE: | 26 February 2002 | |
CASE MAY BE CITED AS: | R v Peter Norman McLean | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 35 | |
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Criminal law – Sentencing – Blind solicitor – Thefts and trust account defalcations - $38,000 – Many mitigating circumstances – 2 years imprisonment wholly suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. B. Kayser | Office of Public Prosecutions |
| For the Accused | Mr D. McSteen | Watson Cudlipp & Hughes |
HIS HONOUR:
You have pleaded guilty to 3 counts of theft. You have also pleaded guilty to 17 counts under Section 42(1) of the Legal Profession Practice Act 1958 of having a deficiency in your trust account.
You were admitted as a barrister and solicitor of this Court in 1981. Given two aspects of your background, that was an extraordinary achievement. The first aspect was that you have been totally blind since 1972. The second was that your school record suggested that you were struggling to pass Form 4. You commenced to practice as a solicitor in 1981. You continued to do so until 1997, for most of the time as a sole practitioner. In January 1997, you were practising as a solicitor under the name of Hughes Watson & Co at 332A Main Road East, St Albans. In that month, investigators from Lawyers RPA attended at your office to conduct a random audit. Their investigations led to your being put into receivership.
The charges to which you have pleaded guilty relate to the appropriation in 1996 of moneys received by you to be held for four clients. You should have held those moneys in trust. Between January and December 1996, you withdrew from those funds just under $39,000. In March and October 1998, the police interviewed you. You told the police that you had appropriated moneys that were not yours to keep your practice operating, and that you intended to pay back the funds when you could. There is no evidence to suggest that the money, which you misappropriated, was used to support an extravagant lifestyle. Your only significant private expenditure appears to have been on the education of your three children. The evidence is such as to satisfy me that you were an industrious and competent and understanding solicitor. What you lacked was that indispensable requirement for any suburban solicitor. It is the capacity to manage a small business. The pressures on you in 1996 were great. Either you had to get out of practice or you could keep going for a time by stealing from your clients. The choice you made may have been a desperate one. It has left you with major nasty long-term consequences, to which I will later return.
I turn to your personal circumstances. You are 57 years of age, having been born in October 1944. You were raised and educated in South Australia. Despite a change in schools, you were not able to secure a pass at form 4. At and beyond school, you were a keen sportsman. You excelled at tennis, cricket, football and athletics. You moved to and worked in Tasmania as a teenager. You joined the army for 6 years. You saw active service in Vietnam, including in Operation Coral. You were honoured for that service. In 1972, you were working as an underground miner at Mount Lyell in Tasmania. An explosion in the mine led to your suffering major injuries including permanent blindness. You were nursed at the time by a woman who was to become your wife. In 1975, you started studying law at Monash University. In 1976, you married, and you and your wife subsequently had 3 children. In your student days and in your work you had the support and encouragement of your wife. In 1981, as I noted earlier, you started working as a suburban solicitor. You continued in that role until January 1997, when your practice was closed. Since January 1997, you have tried to find work as an administrator with limited success. You have tried to shield your family from your disgrace. You can contribute only by way of pension to the family income. Your wife has had to return to work as a nurse.
Several mitigating factors have to be weighed in your favour. You have pleaded guilty to the charges against you, and your intention to do so was made clear at an early stage. You have no prior convictions. You have demonstrated your remorse. You co-operated with the practice investigators in January 1997, and later with the police. You have been waiting to be dealt with by the courts for over five years. You have already been penalised in many ways. You are disgraced in the eyes of your family, your fellow lawyers and the public at large. An order was made last year by the Solicitors Disciplinary Tribunal precluding you from practising as a solicitor for 14 years. That effectively means that you cannot work again as a solicitor. I have heard evidence from two solicitors who have worked with you in the past, and from a close friend. Your reluctance to be realistic about your limitations, which had been such an asset for so long, was ultimately your downfall. I have noted what the psychiatrist Dr Lester Walton has had to say in his report. I have noted that, in addition to your permanent blindness, you have problems with insomnia. His report also highlights your expressions of remorse, and his concern about the risk of the development of a major depressive disorder, and his further concern as to the difficulties of prison management.
The range of penalties, which have been imposed on solicitors for offences of this kind, is a wide one. You do not fall into the category of those meriting a very long jail sentence, as where a large amount has been stolen out of greed to support an extravagant lifestyle. On the other hand, general deterrence must be kept in mind. The thefts and defalcations are major breaches of trust that cannot be viewed as other than very serious. Nothing less than the imposition of a prison sentence is an option. Mr Kayser has notified me that his instructions are that, to take some other course than to impose an immediate custodial sentence, would not be inappropriate. Given the combination of mitigatory circumstances, I am well satisfied that this is an appropriate case for wholly suspending a prison term. Perhaps you may take this as a chance to rise again.
On each of the counts 1, 9, 12 and 16, I impose a sentence of six months imprisonment. On each of the other counts from 2 to 20 excluding 9, 12 and 16, I impose a sentence of three months imprisonment. I make the following orders as to cumulation. The six months imposed on each of counts 9, 12 and 16 are to be served cumulatively upon, and the three months imposed on each of the other charges are to be served concurrently with, the sentence of six months imposed on count 1. There is a total effective sentence of two years' imprisonment. I direct that the whole of that two years be suspended for a period of two years.
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