Australia: Solicitor sent to prison for stealing from clients in NSW

A 64-year old former Sydney solicitor who pleaded guilty to 10 fraud charges, and his 63-year old wife who pleaded guilty to two charges of dealing with the proceeds of crime, have been sentenced in Downing Centre District Court.

Former lawyer Mark O'Brien was sentenced to a full term of 10 years behind bars, with a minimum term of 6 years, while his wife Therese O'Brien was handed a three year sentence to be served by way of an Intensive Correction Order.

The court heard that Mr O'Brien opened a bank account in August 2015 for the purpose of receiving funds that he had planned to steal.

Over the course of the next few years, he stole $2.8 million from the estate of a deceased client who had bequeathed $1.5 million to the St Vincent de Paul Society, two other charities, and the Prince of Wales Hospital.

Mr O'Brien made small donations to the charities, but kept the bulk of the money for himself.

He copied and pasted letterheads from correspondence he received from charities who thanked him for the contributions, and created false entries on ledgers to suggest the bequeathed payments had been made.

The former lawyer also defrauded a client who had given him power of attorney. When his client died, Mr O'Brien stole sums which were meant for charity. He additionally stole a $1.7 million deposit that had been refunded from the aged care home where she had lived.

O'Brien used the money to add to his own and his wife's superannuation, to give money to his children and to buy a $3.4 million home in Bondi Junction, which the couple then renovated.

During the sentencing proceedings, the court heard that Mrs O'Brien initially told her husband to give the money back, was placed in “a moral conundrum” when he refused.

She went on to use the stolen money to purchase various items, including home furnishings.

The deception was discovered when the firm Mr O'Brien worked for called in an accountant to audit the firm's trust account.

His colleagues then reported the fraud to authorities.

Mr O'Brien repaid all except around $500,000 of the money he stole.

He will be eligible for parole in March 2027.

Section 192E of the Crimes Act 1900 (NSW) makes it a criminal offence to dishonestly obtain property belonging to another, or obtain any financial advantage or cause a financial disadvantage to another, where this is done by any deception.

To establish the offence, the prosecution must prove that:

• By a deception, the defendant acted dishonestly, and
• These actions created a financial advantage over another person's property, or caused them to suffer a financial disadvantage, and
• The actions were intentional or reckless.

If the prosecution is unable to prove each of these elements beyond a reasonable doubt, the defendant is entitled to an acquittal.

The maximum penalty for the offence is 10 years in prison when the matter is referred to the District Court, or 2 years if it remains in the Local Court.

However, the sentencing magistrate or judge is at liberty to impose any of a number of other penalties, including:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• A shorter prison term

Section 4B of the Crimes Act makes clear that whether the conduct amounts to ‘dishonesty is to be determined by the trier of fact – whether the magistrate in the Local Court or the jury or judge sitting alone in a higher court – according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

Section 192B of the Crimes Act defines ‘deception' as any intentional or reckless  deception, by words or other conduct, as to fact or as to law, including:

(a)  a deception as to the intentions of the person using the deception or any other person, or

(b)  conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

In addition to having to prove the essential elements of fraud beyond reasonable doubt, the prosecution is also required to disprove any legal defence that is validly raised on the evidence.

It must disprove any such defence beyond a reasonable doubt.

The most common legal defence to fraud charges is duress, which is where:

1. The defendant received a threat of death or serious injury to him or herself, a member of his or her family or another person he or she might reasonably feel responsible for,
2. The threat was of such a nature that a person of ordinary strength and will, of the same sex and strength as the defendant would have yielded to it, and
3. The defendant committed the act which would otherwise constitute the offence as a result.

Other defences to fraud include self-defence and necessity.

As stated, Therese O'Brien was handed a three year Intensive Correction Order for her part in the fraud scheme.

Under the Crimes (Sentencing Procedure Act) 1999, courts in New South Wales have the power to impose Intensive Correction Orders (ICO) for a wide range of offences (an exception being sexual offences where the victim is under the age of 16 years).

ICO's are custodial sentences which are served in the community under supervision.

The standard conditions of an ICO are that the person must not commit any offence and that the offender must submit to supervision by Community Corrections.

In addition to this, a court must impose at least one of the following conditions:

• Home detention,
• Electronic monitoring,
• A curfew,
• Community service work of a specified number of hours,
• Participation in a rehabilitation or treatment program,
• Not to consume alcohol or drugs,
• Non-association with particular persons, and/or
• Not to attend particular places or areas.

Mrs O'Brien must serve 500 hours of community service.

When making an Intensive Correction Order, the key consideration of the courts is the safety and protection of the community.

The court must consider whether an ICO is more likely to address a person's risk of re-offending than a sentence of full-time imprisonment.

An ICO cannot be made where the term of imprisonment for a single offence exceeds two years or where the aggregate term of imprisonment exceeds three years.

If a person fails to comply with the terms of an ICO, the following penalties may apply.

• Record the breach but take no further action;
• Give the offender an informal warning;
• Give the offender an official warning that any further breaches will be reported to the Parole Authority;
• Give a direction about non-compliant behaviour; or
• Impose a curfew.

If there is a serious breach, the NSW Parole Authority can take a range of actions including imposing further conditions on the ICO, revoking the Intensive Corrections Order or revoking the ICO.

The revocation of an ICO will mean the person must spend time behind bars.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.