On 11 December this year the Chief Justice of the Supreme Court of Victoria sentenced a lawyer to 12 years gaol for breach of trust offences.
The way Chief Judge Marilyn Warren AC QC set out her reasons for judgement gave me much-needed hope. Rereading them this morning has given me renewed confidence in the way our system is supposed to operate. I was sufficienly moved to write to Her Honour on 11 December, 2014.
I was moved by your ideals and the courage that accompanied your convictions as you sentenced the prisoner LINACRE this week after his series of fraud offences.
It must be distasteful and unpleasant work to turn your mind to what went on in his. I imagine it's also a little solitary and that elevation to your office distances you somewhat from the support and feedback many of us enjoy in our jobs.
Having been so moved I thought I'd let you know how highly I thought of your work Your Honour. If writing thus breaches any of your Court's protocols I'd hope that your Associate might simply return this note - but if you are able properly to read it I wanted to say thank you to you ma'am.
I'm in no way connected to the matter, I'm a latter-day journalist (publishing to the internet) and I wrote a small article about your decision here.
Thank you for your service Your Honour.
Compare and contrast that gaol sentence to the fine that finalised Craig Thomson's case.
The Victorian Sentencing Manual includes these sentencing guidelines for theft and dishonesty offences involving a breach of trust.
184.108.40.206 - Sentencing guidelines for theft and deception offences
General guidelines - sentencing with respect to theft offences varies widely.
The cases indicate that offences committed in breach of trust, involving large quantities, over an extended period of time will normally attract a significant term of imprisonment.See the cases identified as ‘High value offending’ below. In De Stefano  VSC 68, a case in which an accountant stole a total of $8.6 million from various individuals and companies, in sentencing the offender Kellam J said at :
The breach of trust in which you have engaged is, as I have stated, gross, and involves large sums of money which were stolen over a long period of time. Those members of our society who hold moneys on trust on behalf of others and particularly solicitors, accountants and financial advisers, must understand that if they breach the trust of their clients, severe consequences will follow. The damage to individual members of our community by theft such as yours is extreme. Members of the community who were entitled to rely upon you for their future independence, dignity and comfort, were denied those rights by reason of your dishonesty. There is no alternative, as indeed is conceded by your Counsel, other than the imposition of a term of imprisonment.
De Stefanowas sentenced to a total effective sentence of 10 years, with a non-parole period of 7 years.
Thomson had a top-end position of trust as head of a 60,000 strong trade union, a member-based organisation with all its special status at law. He stole members money. The sentencing guidelines say:
General deterrence significant
When sentencing offenders of special status, the sentencing purpose of general deterrence is prominent. In Pangallo (1991) 56 A Crim R 441, Lee CJ at CL stated at 443:
The guidelines go on a bit and you can read them here.
But it's important to note that Thomson was also a lawyer. And in his role as head of the HSU he dealt daily with matters of law. He gained his law degree as part of his HSU role where officials often appear at court and AIRC hearings. He would daily give advice and provide representation for HSU members - because he was a qualified lawyer his status was elevated. His advice was given more legal "weight" and thus the trust and responsibilities in the relationship between Thomson and his members was also elevated.
The judge mentioned his law degree once in reference to his understanding of the law and his dishonesty - but not with regard to his sentence:
On Monday I ruled that he acted dishonestly, which was one of the issues in the case. My decision was that he knew, during the period of the offending, that he had no legal right to use the cash as he did. The evidence was overwhelming as to his dishonesty. The rules were clear, that the HSU funds were to be only used for HSU business. At the relevant time he had a law degree and had worked with the HSU for a substantial period. From around 1988 he was employed by the HSU as an industrial officer with the New South Wales branch. Then in August 1999, he was elected assistant secretary of the New South Wales branch.
The sentencing guidelines tell us this:
In South AustralianPolice v John (1995) 79 A Crim R 510 at 511, King CJ stressed the gravity of crimes of dishonesty committed by legal practitioners and the need for deterrent penalties:
This court has stressed on many occasions in the past the gravity of offences involving dishonesty committed in the course of legal professional practice.
As an example, I cite Hunter (1984) 36 SASR 101, in which I said at 102:
‘The fact that a trustee is a solicitor, a member of a profession on the integrity of the members of which the public is entitled to rely unreservedly, has always been held by courts to be a grave matter of aggravation of a crime of dishonesty committed in the course of professional practice. There is the further circumstance of aggravation that the course of criminal conduct continued over a long period of years until finally detected.’
Those remarks apply to this case. It is essential that the courts impose penalties for crimes of dishonesty committed in the course of legal practice which will operate as a deterrent to other practitioners who might be tempted, whether by greed or some form of human weakness, to commit similar crimes.
The maintenance of the standards of integrity, which both the court and the public look for in the legal profession demand no less and, indeed, the public demand no less.
There is a degree of public scandal involved in the sight of a legal practitioner who abuses his trust for his own advantage going free.
In Ryan 7/4/1986 CCA Vic, the Court referred to the special position of solicitors guilty of offences of dishonesty in relation to clients or their funds. Young CJ said:
He is not only in a position of trust but he is held out by the Court as a person of skill and ability and as a person who can be trusted. That is the consequence of his admission to practise as a barrister and solicitor of the Court. Such a person must, in my view, inevitably suffer severe punishment for offences which demonstrate that he is not to be trusted. Offences which demonstrate that a solicitor is not to be trusted bring the whole profession of the law into disrepute, and a solicitor guilty of such offences cannot expect to be treated leniently. This, however, is not to say that there is an inflexible rule that a solicitor must receive a custodial sentence even for offences which demonstrate that he is not to be trusted.
In the same case Tadgell J addressed, in more detail, community expectations about the sentencing of such legal practitioners:
The community, of course, expects, as it is entitled to expect, that persons whom this Court admits to practise as barristers and solicitors are persons in whom the community can place a very high degree of trust. This Court must, therefore, be and be seen to be fastidious in the steps it takes with a view to ensuring the maintenance of the highest standards by members of the profession. In dealing with a solicitor who has acted falsely to his oath, and betrayed his trust in his capacity of a solicitor, the Court is therefore faced with a double duty. It is required not only to uphold the criminal law; it is required to do what it can to maintain the honour of the legal profession. This is a task of impressive difficulty when the solicitor’s conduct has not only made an irremediable dent in his own reputation, but has necessarily imperilled the integrity of his chosen profession. An associated difficulty that besets the Court is that it must be seen to deal with a member of its own profession no more leniently than with a comparably dishonest layman. A true comparison, of course, between a deceitful lawyer and a deceitful layman is not easy to make because the layman would ordinarily not have made his oath to demean himself honourably.
In striving to achieve a publicly-acceptable balance of the various sentencing factors involved it would be easy, perhaps often permissible, for the Court to start with the premise that only a sentence of a most condign kind would suffice. I agree, however, with what the learned Chief Justice has said, that a custodial sentence is not always necessary or appropriate when a Court deals with a defaulting solicitor.
In Vassis 26/7/1985 CCA Vic, the Court addressed the effect the breach of trust factor had upon offences committed by legal practitioners as compared with such offences committed by other persons:
The heinousness of particular charges of the related offences depends upon the relationship, if any, between the accused and his victim, and the circumstances giving rise to the offences. Thus an alteration of a figure on a negotiable instrument, causing it on its face to be for an amount in excess of the amount intended by the drawer, might constitute a more serious offence of forgery if committed by a bank clerk than perhaps by a person who has come upon the instrument by chance. Again, the offences might assume a more serious character where the accused person forges the signature of the owner of a valuable document which has been left with the accused for safekeeping, and the accused uses both the forged instrument and the entrusted document to procure a monetary advantage for himself. Circumstances falling within the most grave degree of these related offences include the conduct of a solicitor who, by forging his client’s signature and dishonestly using the forged document together with his client’s title deeds entrusted to him for safekeeping, procures money for his own purposes. By doing so the solicitor betrays the trust reposed in him by his client. Nothing could be more calculated to undermine public confidence in the legal profession than knowledge that valuable documents might be dealt with in such a deceitful way.
Further examples of the manner in which breaches of trust by legal practitioners are dealt with by the courts are provided in: Nolan (1987) 34 A Crim R 19.; Smith (2000) 114 A Crim R 8; Coukoulis (2003) 7 VR 45
The guidelines also tell us that special status and fall from grace should not be mitigating circumstances, particularly for former Members of Parliament.
10.11.1.2 - Offenders not entitled to mitigation by elevated status
In Jackson & Hakim (1988) 33 A Crim R 413, Lee J (with whom Finlay J agreed) stated, at 436-437:
But as was pointed out in Farquhar (unreported, Court of Criminal Appeal, 29 May 1985) the good character of a person holding high office who commits a crime relating to the performance of his office cannot form a basis for the same mitigation of sentence as in the case of an ordinary citizen committing crime, for the public is entitled to expect that those who are placed in high office will necessarily be persons whose character makes them fit to hold that office. Furthermore, whilst one may indeed sympathise with the plight in which the respondent finds himself because of his misdoings it would, in my view, be quite wrong to take into account as a factor in his favour that he was a Member of Parliament and a Minister of the Crown. The holding of such office may indeed bring distinction to him personally but, from the point of view of sentence, it is not a matter which can advance the respondent any more than if he had been some hardworking person carrying on a menial occupation. Members of Parliament and Ministers of the Crown are well paid and receive many privileges and advantages denied ordinary citizens.
Thomson's lawyer submitted that losing his career and the fall from grace should be mitigating factors.
He also told the court that Thomson had given him instructions like this in mitigation, this is from the transcript of Her Honour's sentencing remarks:
I accept Mr James', I will not say submissions, but his instructions that Mr Thomson and his family have spent over $400,000 in legal fees from the time he was charged with 225 charges until today. Of course, as he is entitled to, he maintained his plea of not guilty throughout that period.
If Craig Thomson and his family have spent $400,000 in legal fees - that would be in addition to the $380,000 the Labor Party paid on his behalf. That is a massive amount of money, in addition The Craig Thomson Legal Defence Fund also raised money to pay his legal bills.
So taking all of that into account, this is what Her Honour said:
He is currently working from time to time on a non-permanent basis as a consultant and his wife works part-time. I have been informed he has no assets and his instructions are that it is likely he will have difficulty finding employment because of his tarnished reputation. As the sentencing judge, I must impose a just sentence, taking into account the seriousness of each of the offences, the gravity of the offending conduct, applying relevant sentencing principles and current sentencing practices in relation to the offences as referred to by each member of counsel. I have also taken into account the personal circumstances and matters in mitigation.
In this case it is very serious offending. However I sentence Mr Thomson on the effect of these thefts on the HSU, his employer. Although it is appalling, in particular the breach of trust of the CEO, the consequences were not as widespread.
The disposition I impose must send a message to other people who are either tempted to, or do, think of abusing the trust placed in them by their employers, especially when in very senior positions, and are tempted to behave arrogantly as though they are beyond reproach; and also to people who behaved, as Mr Thomson did, with little insight as to the seriousness of the offences.
Denunciation and just punishment are also relevant, and as I said, also at the same time must take in to account matters put on behalf of the accused, in particular rehabilitation, and I accept his chances of rehabilitation are reasonably good.
I take in to account in his favour that, given his position, there has been an enormous amount of publicity which has permanently damaged his reputation. I might say this, given his position that allowed him to carry out these offences, it does not surprise me that he received the publicity, it was well deserved. I am not critical of the press at all, as the public must be informed. Nevertheless I accept that his reputation has been tarnished permanently and I also accept that that is a form of punishment, to some extent.
I also take in to account the matter raised on behalf that he has been adversely affected, as he was concerned about the effect of the lowering of his reputation in the eyes of the public, and the publicity, on his family. There is also the financial difficulties his family have encountered.
I take in to account in his favour the compensation order made in the sum of $5650.
This case, as I said to counsel, has been a very difficult decision for a trial judge, as although Mr Thomson's conduct has amounted to a serious breach of trust, by a man in a very senior position who has shown a flagrant disregard for his employer, using all the funds that are the subject of these charges for his own self-indulgent purposes over the period, the amount, upon a consideration of the law, is not such that as a matter of law a term of imprisonment is within the sentencing range.
A term of imprisonment ordered to be wholly suspended must not be imposed unless the tribunal of law, myself, a judge, is satisfied, using the relevant legal principles, that a term of imprisonment is appropriate. I have come to the view that it is not appropriate. I must apply the relevant law and I accept the submission of Mr James that taking in to account all the evidence relied on, and the inferences relied on, as the amount stolen was at the highest, which is the Crown position, six and a half thousand dollars, a term of imprisonment to be served immediately or suspended is not in the range of dispositions.
In the circumstances, I consider that a disposition that would reflect the concern I have for the moral culpability, which is high, to deter others, to deter him, to denounce his behaviour and conduct, in particular the breach of trust, is a monetary penalty.
Thomson has 3 months to pay, the penalty is gaol if he doesn't (although the orders aren't clear on how long).
1 I consider on the material that he is likely to be able to obtain a loan or pay his family back or however he wants to do it, to be able to pay his fine. So what my orders will be, I will take into account all the matters, I will convict him of each of the 13 charges and I will impose an aggregate fine of $25,000.
2 MR JAMES: As Your Honour pleases.
3 HER HONOUR: How long do you need? If I can put it that way? I think I can only give you three months and then he has to continually - I'm not sure ‑ ‑ ‑
4 MR JAMES: We'd ask for that three months.
5 HER HONOUR: Yes.
6 MR JAMES: It may be that other matters of a financial priority will lose their priority and have to be deferred and that is something with which those involved will have to ‑ ‑ ‑
7 HER HONOUR: I think as a creditor, the fact that if he does not pay, he could end up in prison. It means that it goes up the list of priorities, Mr James.
8 MR JAMES: And particularly, he's got to know ‑ ‑ ‑
9 HER HONOUR: And ‑ ‑ ‑
10 MR JAMES: ‑ ‑ ‑ that unless it is paid within the time allowed or an extension allowed by the court, the sanction is gaol.
11 HER HONOUR: Exactly.
12 MR JAMES: Thank you, Your Honour.
13 HER HONOUR: Very well. Are there any other matters? Ms Taylor, Mr James? No. I am only asking just in case. Very well, thank you for your assistance. We will now adjourn.
The DPP has 28 days to appeal and I think it should.