Pierre The Slicer came up with a rambling dissenting judgment in the Taswegian DPP’s appeal against ex-solly John Avery’s light-on incarceration.
Avery (pic) was the colourful Hobart art collecting lawyer who acted for mass murderer Martin Bryant and also managed to nick over $500,000 from clients of his law shop.
In many instances his modus operandi was to lift the money paid in advance of work done and then ensure that the firm did not send bills to those clients.
He pleaded guilty to one count of misappropriation as a company officer and 129 counts of stealing.
On September 18, 2008 he was sentenced to four-and-a-half years of porridge with two-years-and-three months non-parole.
There were also compensation orders made by the sentencer requiring the wretch to cough-up $80,506.59 to those he plundered.
DPP Tim Ellis appealed. He wanted five years on the top and three on the bottom plus compo orders requiring payment of the full amount misappropriated or stolen.
Much of the appeal was consumed by the agonising issue of what sentence to give a lawyer.
There was also extremely crafty weighing of the idea that had the stealing not taken place the victims would have had to pay their legal bills and Avery would have received a proportion of those costs.
Pierre (snap) veered off in some fascinating directions.
Sentencing trends in Tasmania were analysed as were the crime levels in the state. Special tables were produced and the rate of imprisonment tracked.
The judge noted that the prison population has increased while the crime levels decreased.
Intriguingly, Tasmania recorded the largest percentage change in the nation’s imprisonment rate in the 10 years from 1998 and in the same period the female rate of imprisonment shot up by a dramatic 218 percent.
Hizonner reached back to 1889-1900 to observe that 62.53 per 100,000 of the Van Diemen’s Land population was locked up. In 1988-89 the prison population ratio per 100,000 was 69.6.
Carefully The Slice edged towards his thesis:
“There ought to be no suggestion that the sentence outcomes provided by the court show diminution in frequency or length of custodian orders. ‘Manifest inadequacy’ is not demonstrated as a policy problem.”
Further, Slicer said the DPP was wrong to contend that sentences for lawyers subsequent to the four years dished out in 1990 to another hapless pilferer called Lyon have been unduly lenient.
What’s more in some of the instances of stealing Avery was taking money represented by unbilled fees – so it really wasn’t as terrible as it looked.
You’ve also got to consider that, “the loss suffered by the firm and the legal corporation was lessened by recourse to undistributed earnings for work in progress or completed and the retention of valuable artworks”.
This was not disputed by the DPP or the judge. Neither took with some of the mitigating factors trotted out by by the accused.
So there, Ellis (snap).
It got no better for the prosecutor when Slice sliced-up the argument for more and better compensation for the victims.
“The director, not unlike Shylock, seeks recourse to the strict letter of the law lest it constitutes a ‘monstrous traversty’.”
That strict letter is that failure to render an account makes the money that of the client.”
There were legal and equitable entitlements of the solicitor and comfortingly a “breach of a regulatory provision does not negate that entitlement”.
If the DPP wanted more money ordered in compensation “he was required to have the matter determined through evidence, not averment”.
Justice Alan Blow, with whom Justice Kylie Tennant agreed, had an entirely different approach.
These are the matters he saw as relevant to sentencing:
* Very little of the money has been repaid – only $36,500 out of $512,218;
* Avery’s criminal conduct extended over six years;
* The number of criminal acts was large. Some of the charges related to multiple acts of dishonesty;
* “Crimes like this reduce the confidence of the public in the legal profession and cause harm to the reputation of the legal profession generally”;
* This was a case of greed, not need.
Then there were the mitigation factors:
* Avery was 60 years old, married with children;
* He had worked as a lawyer for over 30 years and had a good reputation as a solicitor;
* He did work without payment;
* He contributed to the community in football, racing, politics and the yarts;
* He has been struck-off the jam roll, lost his livelihood and much of his reputation;
* He was near bankruptcy;
* He pleaded guilty, although rather late in the piece;
* Had he not committed these crimes some of the money he stole would have come to him anyway as part of his share of the profits of the law shop.
* The clients would have been out of pocket to some extent had bills been sent and they paid them;
* Avery regretted his crimes.
Blowers (pic) thought that stealing by a solly was a worse breach of trust than stealing by lesser types, “say, a clerk, the treasurer of a sporting club, or a financial adviser entrusted with money for investment in shares”.
He also thought it was appropriate for the sentencing judge to have taken into account as a mitigating factor that had the money not been stolen some of would have wound its way back into Avery’s trousers.
He completely ignored the trend of sentencing in Tasmania since 1889 and the change in the ratio of the state’s population in the nick.
Instead, he thought that the gravity of the breaches of trust as a solicitor, the scale, duration and frequency of the offences meant Avery deserved another six months on the top and one-year-nine months on the botty.
And compo all round.