R v Vance; LSC v Vance - [2014] VSC 421

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL LAW DIVISION

No. 0138 & 0218 of 2013

Between:
THE QUEEN
and
EUAN PETER LIONEL VANCE	Accused
Between:
LEGAL SERVICES COMMISSIONER	Applicant
and
EUAN PETER LIONEL VANCE	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	18-21 August 2014
DATE OF SENTENCE:	5 September 2014
CASE MAY BE CITED AS:	R v Vance; LSC v Vance
MEDIUM NEUTRAL CITATION:	[2014] VSC 421

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CRIMINAL LAW – Sentence – Accused (a solicitor) forged signatures on power of attorney – Accused then used certified copies of forged document dishonestly to deceive banks into allowing him access to about $1.2 million of his client’s funds – About $130,000 of client’s funds used to buy cars for accused’s employees or their relatives; nearly $300,000 used to buy two properties the title to which was never transferred into client’s name; and $340,150 in cash stored in safe under floor of accused’s shed – Substantial amount of funds unaccounted for – Accused also used a false document concerning a deceased estate to deceive bank and wrongly failed to pay a cheque for about $14,000 into trust account – Disputed sentencing facts – Accused (unrepresented) gave sworn evidence on plea – Accused’s account mostly rejected – Repeated offending over a protracted period – Gross breach of trust – Accused aged 53 with no prior convictions – Plea of guilty – Some remorse – Excellent prospects of rehabilitation – Delay of 19 months between arrest and charge – Loss of career – Importance of general deterrence, just punishment, denunciation and rehabilitation – Total effective sentence of four years and six months’ gaol with non-parole period of two years and three months – But for plea of guilty, total effective sentence of six years’ gaol with a non-parole period of four years.

LEGAL PRACTITIONERS – Application to strike solicitor’s name from the roll of persons admitted to the legal profession held by the Supreme Court – Application granted (unopposed).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Brown	Office of Public Prosecutions
For the Accused	In person
For the Legal Services Commissioner	Ms L. Hannon	Legal Services Commissioner

HIS HONOUR:

Introduction

Overview

For over 18 months, Euan Peter Lionel Vance did things – seriously criminal things – that no solicitor should ever do. Mr Vance will now go to gaol for his crimes. He will also have his name struck off the roll of legal practitioners.

It all started innocently enough. His elderly and infirm client George William Cutts wanted to execute a financial power of attorney appointing Mr Vance as the attorney. Unfortunately, Mr Cutts’ state of ill health meant that he could not sign the document. So Mr Vance allowed his employee solicitor do so on Mr Cutts’ behalf. That would have been all right had there been the necessary witnesses present. Would it were so. But it was not. Instead of starting again and completing the procedure in the right way, Mr…

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.

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Details

Case: [2014] VSC 421
Decision Date: 5 September 2014

CaseChat Overview and Summary

The case of R v Vance; LSC v Vance involved the sentencing of a solicitor who had engaged in fraudulent activities, including forging signatures on a power of attorney and using the forged documents to access approximately $1.2 million of his client's funds. The accused also used a false document concerning a deceased estate to deceive a bank, and failed to pay a cheque for about $14,000 into a trust account. The dispute included sentencing facts that were contested, but the accused, who was unrepresented, gave sworn evidence on his plea. The case was heard by the Supreme Court, which also considered an application to strike the solicitor's name from the roll of persons admitted to the legal profession.

The legal issues the court needed to address included the nature and extent of the accused's offending, the breach of trust involved, and the appropriate sentence to achieve the purposes of general deterrence, just punishment, denunciation and rehabilitation. The accused had no prior convictions and was aged 53 at the time of sentencing, but had engaged in repeated offending over a significant period. The court also had to consider the accused's plea of guilty, some remorse, and the prospects of rehabilitation. The delay of 19 months between the accused's arrest and charge, and the loss of his career, were also relevant factors.

The Supreme Court concluded that the offending was of a serious nature, involving a gross breach of trust and repeated dishonesty over a protracted period. The court noted the importance of general deterrence, just punishment, denunciation and rehabilitation in determining the appropriate sentence. The accused's plea of guilty and some remorse were mitigating factors, as were his excellent prospects of rehabilitation and the fact that he had no prior convictions. However, the delay between arrest and charge, and the loss of his career, were not considered significant mitigating factors. The court determined that the total effective sentence should be four years and six months' gaol, with a non-parole period of two years and three months. But for the plea of guilty, the total effective sentence would have been six years' gaol, with a non-parole period of four years. The court also granted an unopposed application to strike the solicitor's name from the roll of persons admitted to the legal profession.

Orders