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R v Bell

 

[1981] CCA 62

IN THE COURT OF CRIMINAL APPEAL QUEENSLAND

C.A. No. 113 of 1981

THE QUEEN

v.

JOHN RICHARD BELL

(Applicant)

_________________

THE CHIEF JUSTICE

DUNN J.

MACROSSAN J.

_________________

Reasons for Judgment delivered by Dunn J. on 15th June, 1981 the Chief Justice concurring and Reasons for Judgment delivered by Macrossan J.

_________________

“APPLICATION FOR LEAVE TO APPEAL GRANTED APPEAL ALLOWED. SENTENCE IN DISTRICT COURT SET ASIDE ORDER THAT HE ENTER IN Go A RECOGNIZANCE IN THE SUM OF $1,000 CONDITION THAT HE KEEP THE PEACE AND BE OF GOOD BEHAVIOUR FOR TWO YEARS.”

_________________

IN THE COURT OF CRIMINAL APPEAL QUEENSLAND

C.A. No. 113 of 1981

THE QUEEN

v.

JOHN RICHARD BELL

(Applicant)

JUDGMENT - DUNN J.

The applicant, on 3 April last, pleaded guilty in the District Court to four charges of fraudulent disposal of trust property. The crimes were committed between 1971 and 1976, when the applicant was a solicitor. The charges related to the conversion by him of quite large sums of money in his trust account. The learned sentencing Judge sentenced him, in respect of each charge, to three years' imprisonment, the sentences to be concurrent; and recommended that he be considered, for parole after serving nine months of the sentence. He strongly recommended that he “continue to receive ongoing psychiatric treatment”, and he also recommended that the sentence be served at a Prison Earn. The applicant seeks leave to appeal against sentence.

It is a most unusual case, as will appear. I shall state some further facts and then quote the sentencing remarks of the learned Judge of District Courts in full.

By the end of 1977, the applicant had restored the money in full to his trust account, and had been struck off the role of solicitors. He then went to West Australia, in which State he became a Public Servant, occupying a position of trust and of responsibility and taking an active part in community affairs. It appears that his salary in that State exceeded $30,000 a year. In explanation of the delay in prosecuting him, the learned Crown Prosecutor said this to His Honour:—

“I understand a complaint was made at the end of 1977 to the Law Society, and the police became involved after the solicitor was struck off. From talking to the police officer yesterday, I understand the police were aware that the accused was employed in a fairly high position in Western Australia. In deference to his position there they gave him a period of time to get settled and do not his affairs in order so he could return to Qld. Shortly before the prisoner notified the police, they commenced proceedings for extradition. They intended to extradite him from Western Australia.”

When he became aware of police investigations, he resigned his post in West Australia and returned to Queensland. He went to the Proserpine district, in which he had practised, and found employment with a real estate developer, for whom he was working until he was sentenced. He was entirely co-operative with the police during their investigations.

I now revert to the period during which the crimes were committed. It was a period during which the applicant was under considerable strain, because of overwork and domestic disharmony. He was very active in community affairs. He had formed a syndicate of four local people, and the syndicate had bought ships with which to trade with Bougainville Island. When a profitable contract was lost, the syndicate (in which the applicant was a one-quarter share-holder) encountered financial difficulties. By 1976 he had over-committed himself financially, in establishing a Wild-life; Park and restaurant and buying houses; he had trouble paying for the houses and was threatened with foreclosure.

The evidence of an expert psychiatrist, Dr. Milner, was placed before His Honour. He expressed the opinion that the applicant's personality is that of a constitutional hyperthymic; such a personality is prone to episodes of hypomania, in which there are difficulties in exercising ordinary judgment and discretion. His Honour based a finding upon this evidence, as appears from his sentencing remarks. The Doctor also gave evidence that he had prescribed medication for the applicant, that tests showed that he had been taking the medication prescribed, and that the treatment had been beneficial.

Numerous tributes to the character of the applicant, so-ne in affidavit form, were placed before His Honour. They care principally from leading citizens in the Proserpine area; some were from lawyers. Unusually, tributes came from some of the people whose money had been taken. One, a Mrs. Penhallurick, stated that, had she known that he was in need of money, she would have lent it to him.

I lastly mention that at the time when he was sentenced he was aged forty-two, and that he was then supporting five children whose ages ranged from 13 months to 17 years. The four eldest children are children of his first marriage; it was the marriage which was disintegrating during the period when the crimes were committed. He remarried in Western Australia, and his second marriage is a happy one.

The sentencing remarks of the learned Judge were as follows:—

“John Richard Bell, you have been convicted upon your pleas of guilty to four counts of conversion of trust funds to uses not authorised by the trust. These are, of course, serious charges. Offences of this kind by solicitors are considered to be extremely grave, as they tend to destroy the public trust in solicitors. The maximum penalty fixed for such offences for which you have been convicted is 10 years. Members of the community are entitled to expect that they can deal with solicitors in absolute reliance on their honesty. It is therefore important that the highest standards be maintained in the legal profession.

This present case is an unusual one. It seems to me to be quite different from the type of case where a person in a fiduciary position uses trust funds to pay gambling debts. It is not the case where there has been a premeditated system of conversion of trust funds over a lengthy period. It is a case where there were in effect two instances of conversion of trust funds, these conversions being rather of an impulsive nature. The first of these conversions was an attempt to prevent the impending collapse of a shipping venture run by a syndicate of which you were the head, and the other conversion was for the purpose of purchasing land.

It is clear to me that, at the time of these conversions, you were under great stress from overwork and from matrimonial difficulties. It was evident to all who knew you that the acts were quite out of character and were incomprehensible. You had many friends, it would seem, who would readily have loaned money to you in order to extricate yourself from your difficulties. In addition, you yourself had considerable assets which would, with proper handling, have enabled you to surmont your temporary financial difficulties. I accept the evidence of Dr. Gerald Milner and consider his opinion that your problems and mistakes are readily understandable on the basis of your having had a hyperthymic constitution with a probability of episodes of hypomania. I accept that, at the time of the fraudulent conversions, it is very likely that your judgment was impaired due to your being in a state of hyperthymia with probable episodes of hypomania.

Counsel for the defence, who has brought thoroughness, great care and preparation to his submissions in this matter, has strongly urged me to consider the imposition of a non-custodial sentence in this matter. I assure you that I have earnestly considered his submissions; but I have come to the conclusion, regretfully, that I cannot accede to them.

I have taken into account, however, the mitigating circumstances to which counsel for the defence has pointed. It is to your credit that, in your life, you achieved great success by your obvious ability and drive, combined with sheer hard work. You obviously earned the respect and affection of your clients and members of the Proserpine community and others with whom you came into contact. That is quite evident from the documentary evidence tendered to me.

It is manifest that many of these people still consider you to be a man of integrity and worth. You have in the past been generous, hard working and compassionate. You have been charitable and have been involved deeply in community service. It is, to my mind, of significance that full restitution has been made by you in this matter. The total amount involved is $31,096.65 and no-one has lost a cent. You have lost a lot through your breach of trust. You have been struck off the roll as a solicitor and you have resigned from the high position you obtained in the West Australian Public Service at Kalgoorlie - a position which carried a salary of over $30,000 a year. You certainly rehabilitated yourself to gain such a position as that. You readily co-operated with the investigating officers and the auditor from the Law Society. I have also taken into account that at no time did you attempt to falsify the books in order to mislead. It is very regrettable that you have acted wrongfully and foolishly in temporarily using trust funds for your private outside activities I find this case a most difficult one in which to pass sentence. I find it most painful to impose sentence upon you. I do not believe that you intended to defraud any person in the sense of intending them to lose any money. I believe you acted foolishly when your judgment was impaired to some extent and when you were under great stress. I have noted that this matter has, so to speak, been left hanging over your head for a number of years - it would seem, for three years. The deficiencies were discovered, it would seem, in late 1977 and the record of interview with the investigating police officer did not take place until 5 February 1980. The lower court proceedings were on 20 October 1980, and the matter in this court being dealt with in April 1981.

Being as merciful as I can, taking all relevant factors into consideration I feel obliged to impose a custodial sentence, and I sentence you to three years' imprisonment with hard labour, and I recommend that you be considered for parole after serving nine months of that sentence. I wish to recommend that you continue to receive ongoing psychiatric treatment.”

Learned counsel for the Crown, opposing the application, rightly stressed the importance of the deterrent aspect in sentencing, in a case such as the present one, pointing out that the seriousness of the crime of conversion of trust property has been recognised by the Legislature, the maximum sentence having been increased from 7 to 10 years in 1975. He argued that the recommendation that the applicant be considered for parole after serving 9 months of the sentence was due recognition of the mitigating circumstances in the case. I am satisfied that the sentence was well within the permissible range of sentences; that being so, it would be wrong for us to interfere unless it appears from materials before us that His Honour erred in principle in some way.

It is clear from the sentencing remarks of His Honour that he considered the imposition of a non-custodial sentence. It may also be inferred from the recorded argument that he was greatly troubled at the fact that in no previous case of this kind had a non-custodial sentence been imposed. He asked for an instance and was told that none had been found.

The record of proceedings which is before us is supplemented by His Honour's report furnished to the Registrar pursuant to section 671A of the Criminal Code. The report throws light upon the exchange concerning non-custodial sentences which took place in the course of argument, and I am satisfied that the correct conclusion is that His Honour was speaking literally when he said that he felt “obliged” to impose a custodial sentence, the “obligation” arising from the lack of a precedent indicating that a non-custodial sentence might be imposed. I an fortified in this conclusion by the lack of harmony between the findings made by His Honour and the sentence which he imposed.

I therefore conclude that he attached undue weight to the lack of a precedent authorising the imposition of a non-custodial sentence, and so, whilst addressing himself to his task most conscientiously, unduly fettered his sentencing discretion. It is perfectly true that, if a solicitor misuses a client's money in his trust account, a sentence of imprisonment will almost always result if he is prosecuted to conviction. It is perfectly true that a lengthy sentence will often be appropriate, because of the necessity to impose a punishment that will act as a strong deterrent against similar conduct on the part of others. But it is, I think, essential that Courts remain aware that there may be a departure from a near-universal “tariff” in an exceptional case. I regard this as an altogether exceptional case.

There were mitigating circumstances associated with the commission of the crimes; it is unnecessary to recapitulate them. It is I think of great significance that Dr. Milner's evidence was accepted, and it is relevant that the applicant's hyperthymic condition is now controlled. Whilst the total amount involved was $31,096.65, the fact is - as His Honour pointed out - that “no-one has lost a cent.” Having been struck off the roll of solicitors, the applicant rehabilitated himself in West Australia. After a long delay (a most unusual circumstance, in such a case as this), the police investigation made it necessary that he should surrender the rewards which his rehabilitation had brought him in that State. His conduct after his return to Queensland continued to indicate rehabilitation.

The ultimate question may I think be stated thus. When it has been demonstrated by evidence that society does not need to be protected from the applicant, should the punitive and deterrent aspects of the sentencing process be allowed to prevail, and possibly destroy rehabilitation which has been shown to have taken place? In my opinion, having regard to the commendatory statements of the learned sentencing Judge, the risk of destructive consequences is unacceptable. I therefore think that a non-custodial sentence should be substituted for that which was imposed.

The submissions made to His Honour included a submission that a probation order would be appropriate in this case with respect, I cannot agree with that submission, as it appears that the applicant has been rehabilitated. In my opinion, in this exceptional case, the applicant should be ordered to enter into his own recognizance in the amount of $1,000 that he shall keep the peace and be of good behaviour for two years.

In my opinion, the application for leave to appeal should be granted, the appeal should be allowed, the sentence imposed in the District Court should be set aside and there should be substituted for it the order which I have indicated.

IN THE COURT OF CRIMINAL APPEAL QUEENSLAND

C.A. No. 113 of 1981

THE QUEEN

v.

JOHN RICHARD BELL

(Applicant)

JUDGMENT - MACROSSAN J.

The applicant a solicitor was sentenced on four counts of conversion of trust funds. The total amount involved while substantial was not such as to call for special treatment of the applicant in sentencing him. The period over which the conversions occurred was not lengthy. All of the money involved in each case was paid back. The learned judge dealing with the matter imposed in each case a sentence of three years imprisonment with hard labour, recommending that the applicant be considered for parole after serving nine months of the sentences. The sentences were concurrent.

When one considers the nature of the offences and the fact that they concerned a solicitor's wrongful dealing with his trust account, it could not be said that such sentences should be regarded as falling outside the range ordinarily open. Indeed, so seriously are cases of conversion by solicitors to be regarded, that imprisonment may be thought of as a usual and expected penalty for transgressions of this kind. In the matter of sentence, a discretion was involved and this was reposed in the sentencing judge. On this basis, it might be thought that although the case was marked by a number of unusual features, the application before us had little chance of success. This might still be thought to be so even though some of those features, in the learned judge's view, obviously made the case quite an exceptional one. On the face of things, he appears to have taken into account all of those features in the course of his remarks in imposing sentence.

However, it was the judge's own appreciation of those factors, and the language in which he expressed that appreciation, that raise for consideration before us the question whether His Honour felt himself able to exercise properly the discretion which he undoubtedly had. What was an exceptional case for His Honour to deal with, becomes, because of his approach, an exceptional case for us to deal with on appeal. His reasons, for the most part, read like those of a judge who thought that the case was so exceptional that he would, as was undoubtedly; his right in those circumstances, impose a non-custodial sentence. Yet, in the end, he imposed the sentences which have been mentioned.

For the respondent, on appeal, it was argued, with some persuasion, that His Honour fully took into account all of the exceptional circumstances which had so obviously impressed him, and that he did this in recommending such a short period after which parole should be considered. If this represents a correct appraisal of His Honour's approach we could not interfere with his sentence. However, after full consideration, I am convinced that His Honour really felt that in the very exceptional circumstances of the case before him and indeed in any case of conversion of trust funds by a solicitor in circumstances however exceptional, it was not possibly open to him to impose a non-custodial sentence. He did not say this expressly, but a study of his words reveals it. Even allowing for the terms of sympathy in which observations of sentencing judges are sometimes couched, His Honour's expressions of regret convey the impression that he believed he did not have available an option of imposing a non-custodial sentence. Indeed this impression is rather confirmed by His Honour's having asked counsel for the prisoner whether he was able to point to any instances of a non-custodial sentence having been imposed for an offence of the nature under consideration. On this appraisal of His Honour's approach I feel compelled to conclude that his discretion was not freely exercised and accordingly we can regard ourselves as entitled to interfere if and consider the matter afresh on the application before us.

An appropriate summary of the features of the case and a suitable appraisal of them occurs in His Honour's remarks shorter precis may be stated as follows. The offences occurred at a time when the applicant, was under great stress and they were quite out of character as was attested by the people who knew him. The offences resulted from the operation of deficiencies in the applicant's physical and, in consequence, mental constitution and a psychiatrist described him as hyperthymic. His Honour accepted this and it seems fair to do so. At the time of the conversions the applicant's judgment was impaired due to his being in a state of “hyperthymia with probable episodes of hypomania”. The applicant had by his character and hard work earned respect and appreciation within his community and the regard of his clients. He has already suffered the blow of being struck off the roll of solicitors and, indeed, because of the present proceedings he had resigned from a high and responsible position in the Western Australian Public Service where, after the present offences, he had succeeded in rehabilitating himself to a remarkable degree. He offered full co-operation with the investigating officers and made no attempt to mislead by falsifying his books. He has undergone the stress of the threat hanging over him. He has already been in custody for a period. I think that in the very particular circumstances of this case it is proper to regard the sentence actually imposed as manifestly excessive. In my opinion a non-custodial sentence should be substituted. I am prepared to accept as appropriate what is suggested by my brother Dunn in this regard.

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Editorial Notes

  • Published Case Name:

    The Queen v John Richard Bell

  • Shortened Case Name:

    R v Bell

  • MNC:

    [1981] CCA 62

  • Court:

    QCCA

  • Judge(s):

    Wanstall CJ, Dunn J, MaCrossan J

  • Date:

    15 Jun 1981

Litigation History

No Litigation History

Appeal Status

No Status