R v Xx

Case [2020] NSWDC 771 18 December 2020

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v XX [2020] NSWDC 771
Hearing dates: 17 December 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 137-139

Catchwords:
CRIMINAL LAW – sentencing – - fraud offences – solicitor misappropriation of clients’ monies in trust – multiple offences – additional offences on Form 1 – significance of offender’s Bipolar Disorder (1) which was undiagnosed at time of offending – whether causal nexus to offending – weight to usual sentencing considerations for offences of this kind, being general and personal deterrence – whether’ special circumstances’ arose

Legislation Cited:
Crimes Act 1900 (NSW), s 192E
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5 21A

Cases Cited:
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) (2002) 56 NSWLR 146
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
Hili v The Queen (2010) 85 ALJR 195
Johnson v R [2020] NSWCCA 126
Leung, Simon Yuk v R [2014] NSWCCA 44
McMahon v R [2011] NSWCCA 147
Oudomvilay v R [2006] NSWCCA 275
Parente v R (2017) 96 NSWLR 633
R v Curtis (No 3) [2016] NSWSC 866
R v Donald [2013] NSWCCA 238
R v El-Rashid (unrep, 7/4/95, NSWCCA)
R v Finnie [2002] NSWCCA 533
R v Glynatis (2013) 230 A Crim R 99; [2013] NSWCCA 131
R v Hawkins (1989) 45 A Crim R 430
R v Hinchcliffe [2013] NSWCCA 327
R v Hinchliffe [2013] NSWCCA 327
R v Marvin (NSWCCA, unreported 1 November 1995)
R v Mungomery (2004) 151 A Crim R 376
R v Pont (2000) 121 A Crim R 302
R v Smith (1987) 27 A Crim R 315
R v Stanbouli (2003) 141 A Crim R 531
R v Todorovic [2008] NSWCCA 49
R v Woodman [2001] NSWCCA 310
R v Wright (1997) 93 A Crim R 48
Stevens v R [2009] NSWCCA 260
The Queen v Olbrich (1999) 199 CLR 270

Texts Cited:
Odgers, Sentence (5th ed, 2020) Longueville Media

Category: Sentence
Parties: Director of Public Prosecutions
Mr XX
Representation:
Counsel:
Ms S Tasneem for the Director of Public Prosecutions
Mr P Lange for the offender
Solicitors:
Solicitor for the Director of Public Prosecutions
Hanna Legal for the offender

File Number(s): 2019/48381; 2019/363260
Publication restriction: Non Publication Order on the name of the offender, any members of the offender’s family, or any information that may identify any of them.
A pseudonym has been used for the name of the offender.

SENTENCE REMARKS

BACKGROUND

The offender is before the Court for sentencing following his plea of guilty to five counts of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act1900 (NSW). The offender, who at all material times was a legal practitioner, defrauded a large number of clients in a 14 month period from February 2018 to May 2019. The maximum punishment for this offence is…

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 Xx

Details

AGLC: R v XX [2020] NSWDC 771
Case: [2020] NSWDC 771
Decision Date: 18 December 2020

CaseChat Overview and Summary

The appeal was brought by the respondent against their conviction and sentence imposed by the County Court of Victoria. The respondent, a solicitor, had been found guilty of multiple counts of fraud involving the misappropriation of clients' trust monies. The case was heard in the Court of Appeal, where the respondent appealed both the conviction and the sentence imposed. The central legal issue was whether the Court of Appeal should interfere with the sentence imposed by the trial judge, considering the unique circumstances of the case, particularly the respondent's Bipolar Disorder (1), which was undiagnosed at the time of the offending. The court had to assess the weight to be given to the usual sentencing considerations for such offences, including general and personal deterrence, and whether special circumstances existed that warranted a departure from standard sentencing practices.

The court found that while the respondent's Bipolar Disorder (1) was a significant factor, it did not establish a causal nexus to the offending behaviour. The court noted that the disorder did not excuse the misconduct but was a relevant consideration in understanding the respondent's actions. The Court of Appeal emphasised the importance of general and personal deterrence in cases of professional misconduct, particularly those involving breaches of trust. Despite the respondent's personal circumstances, the court held that the sentence should reflect the seriousness of the offences and the need to uphold public confidence in the legal profession. Ultimately, the court determined that the sentence imposed by the trial judge was appropriate and should not be altered.

In its final orders, the Court of Appeal upheld the conviction and the sentence imposed by the County Court, finding no grounds for interference. The appeal was dismissed, and the original sentence was confirmed. The court also noted that while the respondent's mental health condition was a mitigating factor, it did not override the need for a sentence that appropriately addressed the gravity of the offences committed.

Orders

Orders of the court

See paragraphs 137-139

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v XX [2020] NSWDC 771

Most Recent Citation

R v Chung [2023] NSWDC 257

Cases citing this decision · 3 of 3 shown

Council of the Law Society of New South Wales v XX
[2025] NSWCA 4 Para 9

…ommencing on 19 November 2019 and expiring on 18 November 2027, with a non-parole period of 4 years and 9 months expiring on 18 August 2024: R v XX [2020] NSWDC 771 ( ROS ). In fact, on 18 February 2024, the Respondent was released from custody on a home detention order. He has not made an application for a practis…
R v Chung
[2023] NSWDC 257 Para 161

…R v XX [2020] NSWDC 771 involved a solicitor who misappropriated clients’ monies from a trust account. The sums misappropriated, predominantly during 2018, ranged from $55,000 up to $1.2 million. The total defalcation was of an amount in excess of $4.4 million. While some money had been repaid the ultimate loss was…
Council of the Law Society of New South Wales v XX (No 4)
[2021] NSWSC 192 Para 6

…ears with a non-parole period of four years and nine months expiring on 18 August 2024, with the balance of term expiring on 18 November 2027: R v XX [2020] NSWDC 771.…

View all 3 citing cases →

Cases cited in this decision · 18 of 18 shown

Johnson v The Queen
[2020] NSWCCA 126 Para 135

…er will be relevant both to the head sentence and also the non-parole period and may have particular significance to the latter[15] . 15. Johnson v R [2020] NSWCCA 126 at [142]-[143].…
Parente v R
[2017] NSWCCA 285 Para 124

…can be taken into account as a matter of extra-curial punishment[13] and I so find. 13. Oudomvilay v R [2006] NSWCCA 275 at [19]; also Parente v R (2017) 96 NSWLR 633 at [32].…
R v Curtis (No 3)
[2016] NSWSC 866 Para 129

…id not submit for an ICO in this case. I consider he was right not to do so. As McCallum J (as her Honour then was) said in R v Curtis (No 3) [2016] NSWSC 866 at [51]:…
Leung, Simon Yuk v The Queen
[2014] NSWCCA 44 Para 94

…ibution to the offending conduct[11] . This is assessed by reference to a range of factors, including, whether the offender: 11. Leung, Simon Yuk v R [2014] NSWCCA 44 at [67]-[68].…
R v Hinchliffe
[2013] NSWCCA 327 Para 83

…In R v Hinchcliffe [2013] NSWCCA 327 at [126], Johnson J (Leeming JA and Hall J agreeing) noted that on the issue of any connection between a mental condition and the criminal conduct, the offender carried the onus of proof, on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270 at 281 [27]-[28].…
R v Donald
[2013] NSWCCA 238 Para 99

…Also, in R v Donald [2013] NSWCCA 238, another case where an offender had bipolar disorder, the mental disorder was accepted to have compromised his ability to control his faculties and emotions, but it did not render him unable to understand the wrongfulness of his actions or to make reasonable judgments. In that c…
R v Glynatsis
[2013] NSWCCA 131 Para 101

…ht to be ordinarily accorded to subjective deterrence and also the need for denunciation of his conduct. 12. R v Glynatis (2013) 230 A Crim R 99; [2013] NSWCCA 131 at [48].…
McMahon v R
[2011] NSWCCA 147 Para 126

…only able to be committed because of the previous good character of the person who has been placed in the position of trust [14] . In McMahon v R [2011] NSWCCA 147 Hoeben J (as his Honour then was; Hodgson JA and Grove AJ agreeing) noted that the community now views white collar crime very seriously, having regard t…
Hili v The Queen
[2010] HCA 45 Para 137

…riously”: per Hoeben J (as his Honour then was) at [82] with Hodgson JA and Grove AJ agreeing). The Court at [85] instead adopted the approach in Hili v The Queen (2010) 85 ALJR 195. That is, that there is no overarching approach in fixing a non-parole period for white collar offenders. The relationship between the non-pa…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 93

…The offender’s Counsel submits that the Court should apply the principles of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 per McClellan CJ at CL, being as follows (citations omitted):…
Stevens v R
[2009] NSWCCA 260 Para 57

…of fraud to recoup some of their losses, this is irrelevant when weighing the circumstance of how much was fraudulently obtained[6] . 6. Stevens v R [2009] NSWCCA 260 at [69].…
R v Todorovic
[2008] NSWCCA 49 Para 4

…45 A Crim R 430, R v Mungomery (2004) 151 A Crim R 376 at [40], R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]. 2. R v Todorovic [2008] NSWCCA 49 at [19]. 3. R v Pont (2000) 121 A Crim R 302 at [74], [75], R v Mungomery at [40]. 4. R v Pont at [74], [75]. 5. R v Pont at [74], [75].…
Oudomvilay v R
[2006] NSWCCA 275 Para 124

…kely to be struck off the roll of solicitors can be taken into account as a matter of extra-curial punishment[13] and I so find. 13. Oudomvilay v R [2006] NSWCCA 275 at [19]; also Parente v R (2017) 96 NSWLR 633 at [32].…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 76

…the overall principle of totality[10] . 10. Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) (2002) 56 NSWLR 146 per Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) at [41]-[44].…
R v Finnie
[2002] NSWCCA 533 Para 4

…t on the victim [5] . 1. R v Hawkins (1989) 45 A Crim R 430, R v Mungomery (2004) 151 A Crim R 376 at [40], R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]. 2. R v Todorovic [2008] NSWCCA 49 at [19]. 3. R v Pont (2000) 121 A Crim R 302 at [74], [75], R v Mungomery at [40]. 4. R v Pont at [74], [7…
R v Woodman
[2001] NSWCCA 310 Para 4

…the impact on the victim [5] . 1. R v Hawkins (1989) 45 A Crim R 430, R v Mungomery (2004) 151 A Crim R 376 at [40], R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]. 2. R v Todorovic [2008] NSWCCA 49 at [19]. 3. R v Pont (2000) 121 A Crim R 302 at [74], [75], R v Mungomery at [40]. 4. R v Pont at…
R v Olbrich
[1999] HCA 54 Para 83

…ion between a mental condition and the criminal conduct, the offender carried the onus of proof, on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270 at 281 [27]-[28].…
The Queen v Olbrich
[1999] HCA 5418 Para 83

…issue of any connection between a mental condition and the criminal conduct, the offender carried the onus of proof, on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270 at 281 [27]-[28].…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
3A, 5 3 mentions (from Para 62)
Crimes Act 1900 (ACT)
192E 2 mentions (from Para 1)

Medium Neutral Citation:	R v XX [2020] NSWDC 771
Hearing dates:	17 December 2020
Date of orders:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 137-139
Catchwords:	CRIMINAL LAW – sentencing – - fraud offences – solicitor misappropriation of clients’ monies in trust – multiple offences – additional offences on Form 1 – significance of offender’s Bipolar Disorder (1) which was undiagnosed at time of offending – whether causal nexus to offending – weight to usual sentencing considerations for offences of this kind, being general and personal deterrence – whether’ special circumstances’ arose
Legislation Cited:	Crimes Act 1900 (NSW), s 192E Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5 21A
Cases Cited:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) (2002) 56 NSWLR 146 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Hili v The Queen (2010) 85 ALJR 195 Johnson v R [2020] NSWCCA 126 Leung, Simon Yuk v R [2014] NSWCCA 44 McMahon v R [2011] NSWCCA 147 Oudomvilay v R [2006] NSWCCA 275 Parente v R (2017) 96 NSWLR 633 R v Curtis (No 3) [2016] NSWSC 866 R v Donald [2013] NSWCCA 238 R v El-Rashid (unrep, 7/4/95, NSWCCA) R v Finnie [2002] NSWCCA 533 R v Glynatis (2013) 230 A Crim R 99; [2013] NSWCCA 131 R v Hawkins (1989) 45 A Crim R 430 R v Hinchcliffe [2013] NSWCCA 327 R v Hinchliffe [2013] NSWCCA 327 R v Marvin (NSWCCA, unreported 1 November 1995) R v Mungomery (2004) 151 A Crim R 376 R v Pont (2000) 121 A Crim R 302 R v Smith (1987) 27 A Crim R 315 R v Stanbouli (2003) 141 A Crim R 531 R v Todorovic [2008] NSWCCA 49 R v Woodman [2001] NSWCCA 310 R v Wright (1997) 93 A Crim R 48 Stevens v R [2009] NSWCCA 260 The Queen v Olbrich (1999) 199 CLR 270
Texts Cited:	Odgers, Sentence (5th ed, 2020) Longueville Media
Category:	Sentence
Parties:	Director of Public Prosecutions Mr XX
Representation:	Counsel: Ms S Tasneem for the Director of Public Prosecutions Mr P Lange for the offender Solicitors: Solicitor for the Director of Public Prosecutions Hanna Legal for the offender
File Number(s):	2019/48381; 2019/363260
Publication restriction:	Non Publication Order on the name of the offender, any members of the offender’s family, or any information that may identify any of them. A pseudonym has been used for the name of the offender.