R v Stubbs
[2017] ACTSC 82
•2 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stubbs |
Citation: | [2017] ACTSC 82 |
Hearing Date: | 21 February 2017 |
DecisionDate: | 2 March 2017 |
Before: | Burns J |
Decision: | See [44]-[59] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – fraudulent conduct – obtaining property by deception – legal practitioner – deterrence and punishment – lack of remorse – terms of imprisonment – full-time imprisonment – balance of sentence suspended – Good Behaviour Order – reparation order. |
Parties: | The Queen (Crown) Stephen Raymond Stubbs (Offender) |
Representation: | Counsel Ms K MacKenzie (Crown) Mr J Masters (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Mr J O’Keefe (Offender) | |
File Number: | SCC 269 of 2015 |
BURNS J:
Stephen Stubbs, on 15 December 2016, you were convicted by a jury after trial of 14 Counts of dishonestly obtaining property by deception. You were acquitted of one Count, which was Count 1 on the indictment. The charges of which you were convicted fall into two categories: those where money was obtained from Mrs Anne Duffy, and those where money was obtained from the ACT Legal Aid Commission (‘Legal Aid Commission’). By committing these offences, you dishonestly obtained $25,620.00 from Mrs Duffy, and $4,013.00 from the Legal Aid Commission.
At the time of these offences, you were a legal practitioner employed jointly by two firms in a dubious arrangement that seemed to provide little, if any, oversight of your professional duties by the holder of an unrestricted practising certificate. You, yourself, were the holder of a restricted practising certificate which restricted your right to practice to employment under the holder of an unrestricted certificate. You operated out of an office in the Reserve Bank building adjacent to these Courts. You were apparently admitted to practice as a legal practitioner in November 2006, and you thereafter held a restricted practising certificate until the Law Society refused to issue you with a further certificate to allow you to practice after 30 June 2010. The Law Society, in any event, appointed a manager on 1 July 2010 to the firm of Diana Burns & Associates, one of the firms by which you were employed.
The charges
Between 18 December 2008 and 30 October 2009, on 11 occasions you dishonestly obtained money from Mrs Duffy with regard to you acting for her son, Alexander Duffy, on serious criminal charges:
· on 19 December 2008, you obtained $695.00;
· on 25 February 2009, you obtained $2650.00;
· on 27 February 2009, you obtained $1650.00;
· on 13 March 2009, you obtained $1650.00;
· on 20 March 2009, you obtained $3300.00;
· on 11 May 2009, you obtained $5000.00;
· on 13 May, 2009, you obtained $5000.00;
· on 18 May, 2009, you obtained $725.00;
· on 26 June 2009, you obtained $1650.00,
· on 13 October 2009, you obtained $1650.00; and
· on 29 October 2009, you obtained $1650.00.
All of these payments were made to you by electronic transfer into your personal bank account from Mrs Duffy's mortgage account. You acted dishonestly in obtaining these payments by deceiving Mrs Duffy into believing that her son was not in receipt of a grant of Legal Aid, and that if he was to be legally represented with respect to the serious criminal charges he was then facing, she would need to fund his representation. Alexander Duffy was in fact subject to a grant of Legal Aid for his charges, a fact you well knew.
Between 22 May 2009 and 30 October 2009, on three occasions you dishonestly obtained money from the Legal Aid Commission with regard to you acting for Alexander Duffy on those same criminal charges, pursuant to a grant of Legal Aid:
· on 22 May 2009, you received $1089.00;
· on 18 June 2009, you received $1155.00; and
· on 30 October 2009, you received $1769.00.
Those payments were paid into the account of Diana Burns & Associates. You acted dishonestly in obtaining these funds by deceiving the Legal Aid Commission into believing that you were not in receipt of any private funds from Mrs Duffy to enable you to act for her son and that she was unwilling to privately fund his legal representation. The truth, of course, was that you were in receipt of funds from Mrs Duffy to pay for your representation of her son on those criminal charges.
The one charge upon which you were found not guilty by the jury was a charge alleging that between 2 December 2008 and 20 December 2008, by deception you dishonestly obtained property, being $5,000.00 in cash, belonging to Mrs Duffy with the intention of permanently depriving her of that property (Count 1). The evidence with respect to that charge differed in one significant respect from the evidence regarding the other charges concerning obtaining money from Mrs Duffy upon which you were convicted. Mrs Duffy gave evidence that this was the first occasion that she paid you money and that she paid you $5,000.00 in cash, whereas the subsequent payments were all made by electronic transfer. As a consequence, there was clear evidence, which you could not deny, of the payment by Mrs Duffy with respect to those charges upon which you were convicted. In addition, your then legal counsel cross-examined Mrs Duffy to suggest that she had not given $5,000.00 in cash to you as payment for your representation of her son, but she had in fact brought $5,000.00 in cash with her to court to use as a surety for her son's bail if required.
I am satisfied that the jury's verdict of not guilty on Count 1 did not reflect a rejection of her evidence or reflect any significant doubts as to her credibility. I am satisfied that the verdict on Count 1 reflected the jury's appreciation of the onus and standard of proof in circumstances where there was less evidence with respect to that charge to establish that you had obtained the property from Mrs Duffy, and where there was a potential for confusion on her part. I am satisfied that the version of events given by Mrs Duffy with regard to those charges where the jury returned a verdict of guilty was truthful and reliable.
Each of the offences of which you have been convicted carries a maximum penalty of 10 years imprisonment.
Subjective features
You have a prior criminal history. In 1969, you were convicted of 10 offences of stealing in New South Wales (NSW), as well as 2 charges of stealing a motor vehicle. You were placed on a number of probation orders as well as three suspended sentences of committal to an institution. In 1970, you were convicted of two further offences of stealing and one offence of stealing a motor vehicle. Probation orders were again imposed. In March 1974 you were sentenced to two years imprisonment with a non-parole period of seven months for an offence of receiving in the Sydney District Court. Finally, in 1997, you were convicted at Waverley Local Court of an offence of breaching an Apprehended Violence Order, and without conviction, you were placed on recognizance to be of good behaviour for a period of 12 months.
A Pre-Sentence Report was prepared for the sentencing hearing in these matters. You are 64 years old and you currently reside with your 3 youngest children on a property near Goulburn, which you have owned for approximately 40 years. Your first marriage of 25 years dissolved in 1997. You told the author of the Report that you are estranged from two of your three adult children from this relationship due to your current offences. Your relationship with another partner then commenced in 1997 and dissolved in 2002 due to what you describe as your partner's addiction problems.
You described a close relationship with your 17 year old son who conducts a business from your property. You met your current partner in 2002, and you describe the relationship with her as a semi-relationship. You said that your two children reside with you at the main house and your partner resides approximately two kilometres away on the property.
You told the author of the Report that you were employed as a Federal Customs Agent from 1972 until 1993, although the author of the Report noted that your period of incarceration in 1974 fell within this period. You subsequently completed degrees in economics and law. Interestingly, you told the author of the Report that you were self-employed as a solicitor in Canberra until you ceased that employment in 2010. Your statement to the author of the Report that you were self-employed corresponds with the impression I formed from the evidence that you were, as a matter of practical reality, conducting your own practice as a solicitor during the relevant period.
You reported that your only source of income at the present time is Centrelink payments, although you claim that your expenditure included a monthly car loan of $680.00, private school fees for three children and normal living expenses. You told the author of the Report that you purchased your law practice in 2007 after selling approximately 254 acres of land for $1.5 million. You stated that you had recently sold 3 parcels of land to the value of approximately $1.23 million.
You told the author of the Report that you have made restitution to Mrs Duffy and to the Legal Aid Commission. I accept that this is the case, as you have paid into the Registry of the Court sufficient funds for restitution to be paid to the victims.
The author of the Report records that you repeatedly stated that these offences were a mistake and an error of judgment and law. You described it as ‘sloppy practice and a stupid mistake’. You further stated that ‘[i]t was not wilful, everyone was doing the same thing, it was common practice and not double billing. I see now it was incorrect. If I was alerted, I would have refunded the money.’ You then went on to say, ‘[i]t was never about the money, I should never have stayed on Legal Aid, I should have rejected Legal Aid and got them to pay privately. My client would have paid. I charged a tenth the rate. The client never complained and thanked me for the bail applications. They were my friends.’ You claimed that you had sent paper receipts for the payments to Mrs Duffy and that the person who took over your practice had lost approximately 50,000 files. You describe the purchase of your law practice as dodgy and said that you never received the supervision as stipulated in the contract.
The author of the Report assessed you as at being at low to medium risk of reoffending and did not recommend any form of correction supervision.
You provided the author of the Report with a number of documents concerning your health. You also provided an extensive list of your medications. You were provided with a medical clearance document for your medical practitioner to fill and return concerning your suitability for community service. However, you failed to provide the completed medical clearance document as requested. You were assessed as unsuitable for community service based upon your self-reporting and the documentation which you supplied to the author of the Report.
You provided me a with a number of medical reports for the purpose of establishing that you have medical conditions relevant to the sentencing process. It is not disputed that you have ongoing coronary problems. In 2005, you suffered what you referred to as a heart attack which resulted in three stents being inserted. You suffered a further heart attack in February 2015, with a triple bypass being performed later that year.
What is in dispute is the extent to which your mental faculties may have been affected by hypoxia caused by your heart attacks or your bypass surgery. Psychological testing supports the proposition that you have some memory problems and slowed cognitive information processing. But I am not satisfied that you are as severely impaired as Dr Andrews suggests in his reports. To a great extent, Dr Andrews' opinions were based upon information which you provided, and at a time which you knew these charges were in existence. You therefore had a cogent motive to exaggerate your condition.
In my opinion, little weight should be given to statements by you to medical practitioners and as recorded in their reports in circumstances where you did not give evidence in the sentence proceedings. This is particularly so when the evidence reveals that you are a thoroughly dishonest person.
Not only did you commit the present offences, but I am satisfied that you lied in your evidence which you gave at your trial. You gave evidence to the effect that much of the money which you received from Mrs Duffy was for private legal work which you performed for Mrs Duffy and Alexander Duffy separate to the charges which Alexander Duffy was facing, and which were the subject of grants of Legal Aid.
I am satisfied beyond any doubt that the evidence you gave about taking instructions from Mrs Duffy and Alexander Duffy on these private legal matters was a lie. I am further satisfied that you lied when you gave evidence that you had told Mrs Duffy that her son was the subject of a grant of Legal Aid.
In addition, you lied to the author of the Pre-Sentence Report when you told him that the work that you were undertaking, on your version, for Mrs Duffy and her son was charged at a significantly reduced rate. Your own evidence was to the effect that in 2008 you were charging Mrs Duffy $300.00 an hour, including GST, but this increased in 2009 to $450.00 an hour. Finally, you lied to counsel retained by you to undertake a bail application in this Court on behalf of Alexander Duffy by telling him that you had not received sufficient funds to enable you to pay his account in full, thereby negotiating with him a reduction in his fee. On your own account, you were receiving significant sums of money from Mrs Duffy at this time, and there was no suggestion that she ever refused a demand for money from you.
During the course of the trial you were represented by counsel for the first three days. On the morning of the fourth day your counsel and her instructing solicitor withdrew from the trial for ethical reasons. This was on Thursday 1 December 2016. I offered to adjourn the trial until the following Monday to enable you to attempt to obtain different legal representation, but you declined this offer and asked that the jury be discharged. I declined that application. You thereafter represented yourself in the course of the trial.
On Tuesday 6 December 2016, you failed to appear after attending Goulburn Hospital claiming illness. The evidence about the existence and nature of any condition justifying your admission to hospital at that time was most unsatisfactory. I issued a warrant for your arrest on 9 December 2016, and you were ultimately arrested by NSW police when you were discharged from the hospital, and you were returned to the Australian Capital Territory (ACT). The trial then continued from 13 December 2016 until the jury retired and rendered their verdicts on 15 December 2016.
I raise this not in order to suggest that your conduct in attending the Goulburn Hospital is an aggravating circumstance with regard to sentencing, but in order to make it clear that I am not satisfied on the balance of probabilities that it supports the existence of any significant intellectual deficit which may justify a reduction in sentence.
I had the opportunity to carefully observe you during the period you represented yourself in your trial. This included the period during which you gave your evidence and were extensively cross-examined. I also had the opportunity to carefully observe you during your lengthy final address to the jury.
In my opinion, you were astute to identify not only the object of particular questions, but also the direction that the Crown was heading in its line of questioning. One example of this was questioning concerning the rate at which you charged Mrs Duffy for the supposed private legal work that you said you undertook on her behalf. You had said earlier in your evidence that you charged Mrs Duffy $695.00 for a 2 hour conference, plus GST, plus a $90.00 Legal Aid contribution for her son. You agreed that this worked out to a charge out rate of approximately $300.00 an hour, inclusive of GST. You were then asked whether the rate you charged Mrs Duffy had increased in 2009, and you said that you had increased your rate to $450.00 an hour. It was clear to me that you quickly recognised that a charge out rate of $300.00 an hour, plus GST, would make it difficult for you to explain the sums of the money which you received from Mrs Duffy for your alleged private legal work in early 2009.
I saw no evidence of any significant intellectual deficit exhibited by you during the course of your trial. From time to time, your answers to questions from the Crown were non-responsive, but I am satisfied that this was part of a policy of obfuscation which you pursued deliberately. You clearly understood the issues in the trial, the nature of the Crown evidence, and the basis of your defence. You may not be an experienced or skilled trial advocate, but I am satisfied that your performance during the trial revealed no significant intellectual deficits.
In any event, whatever may be the extent of any intellectual deficits from which you may currently suffer, and I am not satisfied they are significant, you were not subject to them at the time you committed these offences. Nor is there any suggestion that any medical or psychological condition from which you may currently suffer cannot be appropriately treated in custody, or to make a sentence of imprisonment more onerous. I see no reason for negation or moderation of deterrence or punishment as sentencing considerations because of any physical or psychological conditions from which you may suffer. I nevertheless take into account your physical health as outlined in the reports.
I am satisfied that your moral culpability for these offences is high. You engaged in a deliberate and calculated course of conduct with the object of deceiving both Mrs Duffy and the Legal Aid Commission. I am satisfied that your motive for doing so was simply one of greed.
In my opinion, these offences fall on the order of the low to mid range of offences of this nature. Your conduct with regard to Mrs Duffy was particularly reprehensible. You knew that she was particularly distraught and anxious about her son, the charges that he was facing, his mental health, and his safety in custody. You knew that Alexander Duffy was depressed and was refusing to speak to his mother about the charges and the situation he was in. You knew that Mrs Duffy was vulnerable and you took advantage of that vulnerability in a most calculating way to appropriate from her what was, for her, a large sum of money.
Your counsel submitted that your offences concerning Mrs Duffy did not involve a breach of trust on your part, in that you were not in a solicitor/client relationship with her at the time. This is correct so far as it goes. It is well recognised that a relationship of trust exists between a legal practitioner and their client. But this is not the only relationship in which a legal practitioner may be involved which involves an element of trust. Legal practitioners are admitted as officers of the court, and as such, are able to hold themselves out as people of good character who can be trusted. The present case is a case in point of a relationship of trust that was not based upon a legal practitioner and client relationship. As a question of fact, Mrs Duffy placed her trust in you because you were a legal practitioner admitted to practice by this Court. You implicitly held yourself out as a person who could be trusted by Mrs Duffy. It was only because you were a legal practitioner that Mrs Duffy trusted you, and it was only for this reason you were able to appropriate from her the money that you did.
The relationship between you and Mrs Duffy was a different relationship to that which exists between a legal practitioner and their client. But for my part, I see little moral difference between the breach of the relationship of trust that existed between Mrs Duffy and yourself, and the breach of a relationship of trust which exists between a legal practitioner and their client. Looking at the matter in a different way, it may be said that you abused the relationship of legal practitioner and client between yourself and Alexander Duffy in order to steal from his mother.
You did use some of the money you obtained from Mrs Duffy to brief counsel in relation to a bail application in this Court, but that is not significantly mitigatory. Mrs Duffy was making regular payments to you for you to represent Alexander Duffy in his court proceedings, and you had told her that he was not receiving Legal Aid, so you could not rely upon a refusal by the Legal Aid Commission to fund a bail application as an excuse for not at least appearing to be diligently seeking to obtain his release from custody. In other words, in order to keep Alexander Duffy happy and to justify further demands for money from Mrs Duffy, you had to be seen to be doing something.
You also deceived counsel who was briefed to appear on this bail application by telling him that you did not have sufficient funds from your client to be able to pay his account in full. Counsel agreed to accept a reduced amount in satisfaction for this account. You deceived counsel in this way so as to ensure that you retained as much as possible of the money that you had misappropriated from Mrs Duffy.
These offences were not opportunistic. I am satisfied that they were calculated and premeditated. You took steps to avoid the possibility of scrutiny of the amounts that you were receiving from Mrs Duffy by having her pay the amounts which you requested from her into your personal bank account rather than into a firm bank account. The Legal Aid Commission payments were made into the account of one of your employers, Diana Burns & Associates. Your offending continued over a period of some months, it only ceased when a manager was appointed to your practice. That manager found no accounting records in your office, and in particular, no accounting records relating to receipt of monies from Mrs Duffy. You suggested that such accounts existed but they had been lost by the practice manager appointed by the Law Society. I am satisfied that no such accounts existed, and you provided no receipts to Mrs Duffy for the payments you received from her.
The system for payment of legal practitioners for work done, which is the subject of a grant of Legal Aid, or which may ultimately become the subject of a grant of Legal Aid, of necessity places great trust in those legal practitioners who undertake that work. If it became necessary for the Legal Aid Commission to independently confirm the accuracy of statements made by legal practitioners concerning persons held in custody, or who may otherwise be the subject of a grant of Legal Aid, the needs of Legal Aid clients, who are some of the most vulnerable people who appear before these Courts, could not be met in a timely fashion. Any need to independently confirm statements made by legal practitioners to the Legal Aid Commission would also deplete the resources of that office without benefit to those in need of Legal Aid.
It was inevitable that your prior criminal history would have caused concern to those on the Court who considered your application for admission as a legal practitioner in 2006. Undoubtedly, the 30 odd years which had passed since you were sentenced to imprisonment for an offence of dishonesty would have weighed heavily in your favour in considering your fitness to be admitted as a legal practitioner. The Court must have been satisfied that you had reformed yourself since you were sentenced to imprisonment in 1974. Instead of taking the opportunity that you were given, and determining to vindicate the judgment of the Court, within three years of admission you used your position as an officer of the court to defraud Mrs Duffy and the Legal Aid Commission.
You have shown no remorse for your offending. If you had entered an early plea of guilty to these charges, a significant reduction in the appropriate sentence could have been anticipated. You lied during the course of your trial for the purpose of trying to avoid the consequences of your actions. As part of your lies, you made outrageous allegations against your former client, Alexander Duffy, and Mrs Duffy. You lied to the author of the Pre-Sentence Report in order to try to minimise your culpability.
You are a thoroughly dishonest man who will say whatever you think may be of benefit to you at any particular time. Your motive for committing these offences was greed. The evidence which was placed before me during the trial established that you had significant financial resources available to you throughout the course of this offending. The contents of the Pre-Sentence Report also indicates that you have significant assets, some of which were converted into large sums of money at about the time you committed these offences. It borders on the pathological that you felt the need to steal from Mrs Duffy and from the Legal Aid Office amounts of money which, to you at that time, could not have been particularly significant. This is particularly so when you appreciated that Mrs Duffy was in a very difficult financial position.
I take into account in your favour the fact that you have paid into Court amounts sufficient to make reparation to your victims. But I am not satisfied that this reflects any true remorse on your part as opposed to attempting to mitigate any penalty for your offending.
Those who clothe themselves with the integrity of the court as officers of the court must understand that if they abuse the trust that members of the community place in them by virtue of their position as legal practitioners, they must expect condign punishment. It is important that this Court sends a clear message to the community at large, and to legal practitioners in particular, that such crimes by a legal practitioner will not be tolerated and will be met with appropriately severe punishment.
In my opinion, nothing less than immediate terms of imprisonment are appropriate to satisfy the requirements of sentencing, and in particular, deterrence and punishment. I hold out little hope for any true reformation on your part, bearing in mind your age, your thoroughly dishonest character as revealed in this trial and your lack of remorse.
Sentence
With regard to Count 2, I record a conviction and you are sentenced to eight months imprisonment, commencing on 28 February 2017 and expiring on 27 October 2017. I have backdated the commencement of this sentence to allow for the period that you were held in custody after being arrested on the warrant upon your release from Goulburn Hospital.
With respect to Count 3, I record a conviction, and you are sentenced to 12 months imprisonment, commencing on 28 March 2017 and expiring on 27 March 2018.
With regard to Count 4, I record a conviction, and you are sentenced to 10 months imprisonment, commencing on 28 July 2017 and expiring on 27 May 2018.
With regard to Count 5, I record a conviction, and you are sentenced to 10 months imprisonment, commencing on 28 August 2017 and expiring on 27 June 2018.
With regard to Count 6, I record a conviction and you are sentenced to 12 months imprisonment, commencing 28 September 2017 and expiring 27 September 2018.
With regard to Count 7, I record a conviction and you are sentenced to 13 months imprisonment, commencing 28 October 2017 and expiring 27 November 2018.
With regard to Count 8, I record a conviction and you are sentenced to 13 months imprisonment, commencing 28 December 2017 and expiring 27 January 2019.
With regard to Count 9, I record a conviction and you are sentenced to eight months imprisonment, commencing 28 July 2018 and expiring 27 March 2019.
With regard to Count 10, I record a conviction and you are sentenced to nine months imprisonment, commencing 28 August 2018 and expiring 27 May 2019.
With regard to Count 11, I record a conviction and you are sentenced to nine months imprisonment, commencing 28 October 2018 and expiring 27 July 2019.
With regard to Count 12, I record a conviction and you are sentenced to 10 months imprisonment, commencing 28 November 2018 and expiring 27 September 2019.
With regard to Count 13, I record a conviction and you are sentenced to 10 months imprisonment, commencing 28 January 2019 and expiring 27 November 2019.
With regard to Count 14, I record a conviction and you are sentenced to 10 months imprisonment, commencing 28 March 2019 and expiring 27 January 2020.
With regard to Count 15, I record a conviction and you are sentenced to 10 months imprisonment, commencing 28 May 2019 and expiring 27 March 2020.
The aggregate sentence which I have imposed is therefore one of three years and one month imprisonment, commencing on 28 February 2017 and expiring on 27 March 2020. In the light of your age and your health, I order that the period commencing on 28 February 2017 and expiring on 27 February 2018 be served by way of full-time imprisonment with the balance of the sentence suspended. There will be a Good Behaviour Order for a period of two years and one month, commencing on 28 February 2018, which will be confined to the core conditions only.
I make a reparation order requiring you to pay reparation in the sum of $4,013.00 to the ACT Legal Aid Commission. I make a further reparation order requiring you to pay $25,620.00 to Mrs Anne Duffy. I note that these sums have been paid to the Registrar of the Court by you, and I direct that they be paid out to the victims forthwith.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 5 May 2017 |
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