R v Smith

[2001] QCA 430

SUPREME COURT OF QUEENSLAND

CITATION:

R v Smith [2001] QCA 430

PARTIES:

R
v
SMITH, Henry William
(applicant)

FILE NO/S:

CA No 116 of 2001
DC No 106 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

12 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2001

JUDGES:

de Jersey CJ, Chesterman and Mullins JJ

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant was a solicitor who misappropriated approximately $6.5 million of his clients’ money over 13 years – where applicant pleaded guilty to dishonestly applying such money and sentenced to 10 years’ imprisonment with a recommendation that he serve 6 years – whether sentence manifestly excessive – whether applicant’s major depression relevant – whether recommendation applicant serve more than 50% of sentence improper – whether guilty plea not given proper weight in sentencing

Prisoners (Interstate Transfer) Act 1982 (Qld)

R v Griinke [1992] 1 Qd R 196, cited

COUNSEL:

Mr B G Devereaux for the applicant
Mrs L J Clare for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Chesterman J. I agree that the application should be refused for the reasons expressed by His Honour.

1. CHESTERMAN J:  On 20 April 2001 the applicant pleaded guilty to an ex officio indictment which charged him with dishonestly applying to his own use money belonging to different persons.   The offence was committed between June 1983 and September 1996.  The amount involved was a little over $6.5 million, $1.8 million of which has not been recovered. 

The applicant was a solicitor who practised for many years on the Gold Coast before moving to practise in northern New South Wales.  The money which he dishonestly used was his clients’.  He is now 56 years of age and was 37 when he embarked on his career of dishonesty.

1. The applicant’s dishonesty occurred in 72 individual transactions and involved 31 victims or sets of victims.  They were, for the most part, elderly people who entrusted their money to the applicant to be invested by him on their behalf.  In many cases the funds represented security for their retirements.

1. In about September 1996 the applicant was under investigation by the Queensland Law Society for irregularities in the conduct of his practice.  He voluntarily surrendered his practising certificate but moved immediately to New South Wales where he commenced practise without notifying the Law Society of that State of what had happened in Queensland.  He continued his pattern of defrauding clients while practising in New South Wales.  He misappropriated over $2.8 million of…