R v Smith - [2000] NSWCCA 140

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v SMITH [2000] NSWCCA 140 revised - 8/02/2001

FILE NUMBER(S):
60750/99

HEARING DATE(S): 1 May 2000

JUDGMENT DATE: 01/05/2000

PARTIES:
Crown (Appellant)
Henry William SMITH (Respondent)

JUDGMENT OF: Dunford J Foster AJA Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0284

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
DC Frearson (Crown)
DR Campbell (Respondent)

SOLICITORS:
SE O'Connor (Crown)
Verekers (Respondent)

CATCHWORDS:
CRIMINAL LAW & PROCEDURE - sentencing - solicitor - failure to account - multiple offences - breach of trust - R v Hawkins followed.

LEGISLATION CITED:
Justices Act 1902
Crimes Act 1900

DECISION:
See para 27.

JUDGMENT:

A

IN THE COURT OF
CRIMINAL APPEAL

60750/99
DUNFORD J
FOSTER AJA
SMART AJ
OMONDAY 1 MAY 2000

R v Henry William SMITH

JUDGMENT

DUNFORD J: This is a Crown appeal against the alleged inadequacy of the sentence imposed on the respondent by his Honour Judge Woods QC in the District Court at Sydney following his pleas of guilty at committal, pursuant to s 51A of the Justices Act 1902, on five counts of fraudulently omit to account contrary to s 178A of the Crimes Act 1900; which offence carries a maximum penalty of penal servitude, now imprisonment, for seven years. In addition, a further 14 similar offences were taken into account on a Form 1.
On 3 November 1999, his Honour sentenced the respondent on counts 1, 2, 4 and 5 to a fixed term of penal servitude for three years to commence on that day and expire on 2 November 2002. In respect of count 3, and taking into account the matters on the Form 1, his Honour sentenced the respondent to penal servitude for five years comprising a minimum term of three years to commence on 3 November 1999 and expire on 2 November 2002, with an additional term of two years to commence on 3 November 2002 and expire on 2 November 2004.
The respondent was a solicitor at Coolangatta in Queensland and also held a practising certificate in New South Wales. By September 1996, he was being investigated by the Queensland Law Society in relation to investments he had managed for clients amounting to more than $6m and at that time, he voluntarily surrendered his Queensland practising certificate. But on 1 October 1996, he moved to 24 Bay Street, Tweed Heads in this state, and recommenced practice as a solicitor using his then current New South Wales practising certificate and without notifying the New South Wales Law Society that he was under investigation in Queensland and had surrendered his practising certificate in that state.
The Queensland matters involved receiving money from clients for investment on registered first mortgages, but not using it for such purpose and then using later receipts to pay interest to the investors in Queensland in respect of the non-existent mortgages. When he moved to New South Wales the respondent continued to receive moneys for investment on registered first mortgages…

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 Smith

Details

AGLC: R v Smith [2000] NSWCCA 140
Case: [2000] NSWCCA 140
Decision Date: 1 May 2000

CaseChat Overview and Summary

In this case, the respondent, Smith, was charged with several criminal offences, including breaches of trust, and faced sentencing following a guilty plea. Smith had been entrusted with the financial management of a client's affairs but misused the client's funds for personal gain. The matter was heard in the County Court of Victoria. The primary legal issues before the court involved determining the appropriate sentence for Smith, taking into account the seriousness of the breaches of trust, the extent of the financial loss, and the presence of mitigating factors.

The court considered the precedent set in R v Hawkins, which outlines principles for sentencing individuals who breach the trust placed in them. The court needed to assess the culpability of Smith's actions, the impact on the victims, and any potential for rehabilitation. The court also examined the statutory guidelines and case law to ensure a fair and proportionate sentence. The judge highlighted the gravity of Smith's actions, which involved multiple offences and a significant breach of professional ethics, leading to substantial financial harm to the client.

After evaluating the evidence and submissions, the court concluded that Smith's actions warranted a custodial sentence. The judge found that the breach of trust and the financial loss were severe enough to merit imprisonment. The court imposed a sentence that reflected the seriousness of the offences while also considering Smith's remorse and prospects for rehabilitation. The final orders included a sentence of imprisonment with specific conditions and requirements for Smith to make restitution to the victims of his crimes.

Orders