R v Patrick
[2007] VSC 384
•13 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1593 of 2006
| THE QUEEN |
| v |
| DOUGLAS ALLAN PATRICK |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2007 | |
DATE OF SENTENCE: | 13 February 2007 | |
CASE MAY BE CITED AS: | R v Patrick | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 384 | |
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Plea – trust account deficiency – false accounting – bond.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr GM Horgan SC | Angela Cannon Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J Kennan SC | Lewenberg & Lewenberg |
HER HONOUR:
Douglas Alan Patrick, you have pleaded guilty to six counts, three of furnishing false information, or what is referred to as false accounting, and three of having a trust account deficiency.
The maximum penalty for false accounting is 10 years’ imprisonment and trust account deficiency is 15 years' imprisonment.
You are now aged 56 having been born on 21 August 1950. You are currently working as a financial consultant and you live with your wife and children in Canterbury.
The offences involved relate to the sum of $3,830.82 on 30 June 1997; the sum of $1,830.82 on 18 July 1997, and the sum of $3,515 on 29 November 2001. You have no prior convictions whatsoever.
I am going to sentence you to be placed on a bond to be of good behaviour for a period of 24 months and that bond will be with conviction. The Crown, in their submissions to the Court, did not submit a custodial sentence of any nature and said that a fine or a bond was really the most appropriate penalty in light of the particular circumstances of your case, and I must say I agree with that.
The offences to which you have pleaded guilty are well set out in the Crown opening, which is Exhibit 1, and I have no intention of repeating them in this sentence. They are at the lowest end of the scale of offences of this nature. The total involved was just over $9,000 and it was not money that at any stage was ever to be for your own spending. The money was directed into meeting the targets set by your firm for your department. All firms have become hard‑headed businesses, with targets and budgets and six minute units which, I add, is, in my view, driving young lawyers out of the profession at a very rapid rate. You, unfortunately, had commenced practice when it was a profession and unlike its current incarnation. It would, of course, have been preferable to have approached your other partners and indicated that it was not possible to meet the budget that had been set for you and suffered the consequences of not meeting that budget. Instead, you chose this course of conduct, the one of stealing money from those accounts. That has resulted in far worse consequences for you, your wife, your children and the community that you had previously served so well.
In relation to this matter, you have had a number of factors I consider mitigatory. The matter was heard initially by a disciplinary tribunal, and how all this came to light was that, in 2001 there was an internal audit by your firm, which discovered that money relating to costs and disbursements in the Lustigman matter, had in fact been wrongly diverted.
As a result, the firm referred this matter to the Law Institute, who ultimately referred it to the tribunal. It was in 2002 that you gave up your practising certificate, on the expectation that you would be dealt with by the tribunal. You were unfortunately not dealt with until 2004 and at that stage, you admitted the offences, dealt with by the tribunal. They fined you, I am not sure of the amount, but you were also not entitled to apply for a practising certificate until the year 2007, they in fact indicated that for three years you would not be able to apply for a practising certificate, knowing that you had already had two years of not practising. The chair of that tribunal was the former Judge Jones of the County Court. He also, as a result of that, banned you, as I am informed, from being able to hold a trust account of any form for a period of 40 years, as part of that order. That seems to me to be an appropriate matter and an appropriate protection of the public.
In 2004 you were spoken to by the police. You made a no‑comment record of interview, but you were not charged in respect of these matters until 2006 and ultimately you pleaded guilty before this Court.
Your personal history is such that to a large degree it is almost the classic history of a lawyer of your age and vintage, which I have to say includes my age and vintage. You attended primary school in Ashwood, from there to Scotch College, repeat matriculation, Monash University, articles at Blake & Riddle. What you did was you practised really in the one firm for the whole of your working life. Blake & Riddle were, of course, a quite different firm to Blake Dawson Waldron, and that appears to be where the problem started.
I accept what was put on your behalf as to what occurred, the type of firm that Blake Dawson Waldron became compared to the firm with which you were a partner at the time of the merger or takeover, whichever you wish to describe it as. You went from being a practitioner in the conveyancing/probate area with a number of solicitors working on an annual budget of about, according to the notes provided to me, $400,000 a year in 1988 to a budget of $1.5 million by the year 2000 with no solicitors left to assist you, but six to eight clerks helping you. So what you had was a huge volume of turnover, possibly very little in the way of legal work, but you had a budget you had to meet. Those budgets, I think, cause many people problems. As I said, there was a much easier solution that was available to you and one that, to a large degree, when I look at your background, surprises me you did not take.
The references that I have received in respect of you I have read, and they clearly talk about the fact that you are normally an honourable man. You have had a great involvement in cricket and sport involving youth in this State. You have been awarded a medal for your voluntary services. You have done untold voluntary work in respect of youth and cricket. All of that, to a large degree, you have lost as a result of something, I suppose, to a degree, I should say, as petty as this.
I accept that you are deeply ashamed of your behaviour; I accept that you have been humiliated; and I am sure you regret cutting corners to keep things going. You have in fact been punished, I think you have been punished in many ways. You had to resign from the MCC committee which you had been on for an extraordinarily long time from a young age. I have no doubt that when all of this came to light you did become ill with depression and not able to face various friends and situations. Equally, I think your wife would have gone through almost as hard a time in respect of it as you did. She gave evidence before me and I have to say, she impressed me as a very decent woman, who cares about you and what happened. I did not get the impression she cared about the money you lost; she cared about what you lost in the way of your own credibility, the standing you lost in respect of your children, but more importantly, she was concerned to make sure you stayed alive and able to cope with the depression, which not surprisingly resulted. You should consider yourself very fortunate to have her as a wife.
Equally, Mr Alan McDonald, a former justice of this Court, gave evidence for you. He knew you as a result of your being on the committee of the MCC. I read his reference as well with interest and he talked about how you were held in very high regard; that you had been a very hard worker for young people, not just in terms of providing advice but with hands on, picking people up, ferrying them around, giving children with potential an opportunity to do something with their lives. As a result of all of this, you do not have that position any more. It is a terrible shame for you and it is a terrible shame for the community.
In my view, you have faced a number of penalties - financial, social and career. I have no doubt they were all humiliating and hopefully humbling. The position of the lawyer is a trusted one in our community. People have confidence in providing their hard‑earned income to solicitors to invest and look after for them. That is because they trust those lawyers. Any time that trust is breached, the damage is not just to that person who breaches it but the whole of the body of solicitors that practise. You hold the position of an Australian lawyer and are admitted to practice by this Court. A breach of that trust requires the Court to record and strongly express its disapproval. It is, in my view, inappropriate to not record a conviction.
Four of the offences occurred in 1997 on two occasions and then again there was another separate offence in 2001. They are dates well separated in time which indicates that the lack of detection on the previous occasion meant that you were prepared to try this process again. If it had been a one‑off act of desperation and never attempted again, it may have been appropriate, in light of your unique circumstances, to not record a conviction but, balancing all of the sentencing obligations that are imposed on this Court, particularly that of general deterrence and denunciation of the actions, it is my view that it is appropriate to record a conviction. I do not think the matter of specific deterrence has any application in this case.
I accept that you are absolutely unlikely to ever commit an offence of this nature again. Equally, I do not believe that there is any need to impose any monetary fine, as I have no doubt that has been imposed over the years by those whom you instruct, as well as this tribunal. No disrespect to those appearing for you.
There is no doubt that this would have been an extremely costly lesson for you in so many ways, not just financial. But for all of those reasons, I direct that on each of the Counts 1 to 6 inclusive on the presentment, you are convicted and released on an undertaking to be of good behaviour for a period of two years. Are you prepared to enter into that undertaking.
PRISONER: Yes, I am, Your Honour.
HER HONOUR: Come forward to sign it. You understand the consequences of the undertaking you have signed?
PRISONER: I do.
HIS HONOUR: You agree to be bound by its conditions.
PRISONER: I do.
(Bond signed and acknowledged.)
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