R v Elliott[2002] QCA 170

COURT OF APPEAL

McMURDO P

McPHERSON JA

MACKENZIE J

CA No 325 of 2001 

THE QUEEN

v.

MICHAEL FREDERICK ELLIOTT  Applicant

BRISBANE

DATE 14/05/2002

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against sentence was convicted on his own pleas of guilty in the District Court at Southport.  The offences of which he was convicted and the sentences imposed concurrently in respect of them were as follows.

Count 1, misappropriation with circumstances of aggravation, being that he acted in breach of trust.  The sentence imposed there was, as it was in respect of each of these offences, to be served concurrently, nine years' imprisonment with eligibility for post-prison community release fixed at three and a half years.  The applicant was a solicitor and he defrauded nine of his clients of an amount totalling $718,000 or thereabouts.

Count 2 was a charge of forgery. The sentence was, as I have already said it to be, nine years with the same eligibility.  In this instance the applicant forged a variation to a bill of mortgage.

The third count was uttering that forged document. The same sentence was imposed. In that instance there does not seem to have been any particular loss, although the process was used to cover up another offence or offences in which the client lost some $100,000.

The fourth count was again misappropriation with circumstances of aggravation. In this instance the victim was an elderly lady aged 73, who is the aunt of the applicant. She appears to have lost a sum of the order of $300,000.

The gross loss amounted in all to over $1 million, the net loss to the clients being something over half a million to $1 million. No repayment was made by the applicant himself, but compensation has been paid from the Law Society's Fidelity Fund to, at any rate, some of the persons who suffered as a result of count 1 and perhaps the other counts, part from count 4.

The maximum penalties it should be noticed for these offences are 10 years for counts 1 and 4 of fraudulent misappropriation, and 14 years for the counts involved in 2 and 3 of forgery and uttering. The offences were committed over an extended period running from approximately 1986 to 1996.

The appeal is based essentially on the ground that the sentence is manifestly excessive and that there should have been a greater recognition of factors that ought to have led to a reduction in the period that would actually be served by the applicant.  Matters relied on are the applicant's age at sentence. He was 65 then and is 66 now; and his very early pleas of guilty which involved a pleading to an ex officio indictment:  he cooperated fully to the extent of assisting the police and investigators unravel the complications of his fraud.  There was a delay in prosecuting the offences no doubt brought about in part by the difficulty of finding out exactly what had happened; and also, and especially, the applicant's declining health; and the disability of his wife, whose eyesight is so seriously impaired that she is practically blind.  He has been her sole carer and it was reported to us this morning that she now appears to be suffering from cancer. Very clearly her position is one that merits the utmost sympathy; but it is evident that whatever sentence is imposed in this case would involve a period of extensive imprisonment during which the applicant will be separated from his wife and unable to care for her.

It should also be noticed that the applicant had no previous convictions prior to this occasion, although, against that, the criminal offending has been going on for some time.

As I said in respect of the first offence, there were nine victims.  They ranged in age from about 55 to 84 years.  They were all elderly people, apart from two, who were, first, a citizen of Yugoslavia who spoke little English and might be thought to have had that advantage taken of him, and, secondly, two men of Chinese origin from Taiwan.

In respect of the fourth count of misappropriation it is necessary to mention that the victim there, who I said was his aunt, was an elderly lady who came for a visit to Australia in 1991.  On arrival she was in a confused state. She was cared for by another relative, who was also a nephew, until it became too difficult for him to discharge this function, and she was then sent to live with Mr Elliot at the end of that year.  He had a power of attorney over her affairs and acquired a house, in which he and his wife looked after the aunt.  The upshot of his use of her funds appears to have been that she suffered a loss of the order of $300,000.

It is always a matter for great surprise and regret when a solicitor of long standing and good reputation like the applicant in this case is found to have been deceiving his clients and other members of the profession, in the sense that everyone supposed that he was behaving as solicitors should but he was in fact defrauding his clients.  The explanation for it here is a little hard to find.  He did, at one stage, become involved in a syndicate that was buying and selling property on the Southbank area of Brisbane.  He bought out the other partners in the venture and had a contract to sell the properties for $5 million, which fell through.  As a result of these activities Mr Elliot was adjudicated bankrupt in 1992.  He then succeeded in finding another partner so that he could continue to practise as a solicitor after his bankruptcy.  It is perhaps not quite clear from all the material, but the impression I have gained is that perhaps some of these offences took place before he became financially involved in the syndicate, though most of them took place afterwards.

As I have mentioned, the maximum penalties are 10 years for counts 1 and 4, and 14 years for counts 2 and 3.  The range that one can gather from looking at other cases of this general kind is from seven years, with a recommendation perhaps after three years, to 10 years with a recommendation after four years.  The Crown submitted at sentencing that the range was eight or nine years in this case and, on appeal, it has argued on the basis of the authorities of like kind that the range perhaps extends as high as 10 years.  The appellant submits that the sentence should be seven years with a recommendation for early release after two and a half years, or perhaps three years, which would not differ very greatly from the sentence imposed here.  

At the sentence hearing counsel for the defence appears to have accepted a sentence of the order of eight to nine years with a reduction for the plea of guilty on the ex officio indictment. It was obviously open to his Honour to impose a head sentence of the order of nine years, as he did, and make a recommendation for parole, again as he did, at about three and a half years; or, alternatively, to reduce the head sentence to, say, seven years leaving the ordinary processes of parole or, as it is now called, post-prison community release, to operate at the halfway mark or thereabouts. That would have produced much the same result, if not exactly the same result, as in this case.

One cannot fault the Judge for taking the course he did and, indeed, it has not been suggested that he was wrong in doing so. What is said is that, in view of the special personal factors, including particularly the sad state of health of his wife, the applicant's position should have received greater recognition, or a greater mitigation of his penalty, by way of an early parole recommendation.

One can only have sympathy for the unfortunate lady who is his wife; but the fact of the matter is that nothing we can do to the sentence would bring it so low as to facilitate the release of the applicant within a time that would enable her problem to be solved, or to restore him to her side as her career. Regrettably it is not within our power simply to make arrangements that enable her distress to be mitigated in this fashion.

The applicant has betrayed his trust and done so to the extent that other members of the profession are disgraced by it and are obliged to contribute to the fidelity fund. In that way he has affected his more honourable colleagues. It would be a mistake, in my opinion, to ignore these factors in this case, because they will only return to trouble us in any other case of the same kind, of which, regrettably I suppose, there will be more in the future.

In all the circumstances, I can see no error in the Judge's exercise of his discretion either in fixing the head sentence in this case or in arriving at a parole recommendation at the level or time at which he did. It follows, in my opinion, that the application cannot succeed and should be dismissed.

THE PRESIDENT:  I agree.

MACKENZIE J: I agree.

THE PRESIDENT:  The order is the application for leave to appeal is dismissed.