District Court New South Wales Medium Neutral Citation: R v Mark Leo O'Brien; R v Therese O'Brien [2021] NSWDC 67 Hearing dates: 19 November 2020; 17 December 2020 Date of orders: 16 March 2021 Decision date: 16 March 2021 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: Mark Leo O'Brien: aggregate sentence of 10 years imprisonment with a 6 year non-parole period (indicatives sentences detailed at [214]) Therese O'Brien: aggregate sentence of 3 years to be served by way of intensive correction order. (indicative sentences detailed at [217]) Catchwords: CRIME — Fraud — Dishonestly obtain financial advantage by deception — White-collar crime — Fraud by solicitor — Misappropriation of funds intended for charity — Restitution capable due to retention and investment of funds — Knowingly deal with proceeds of fraud — Gross abuse of trust — Moral conundrum of wife — Misprision of felony — Moral culpability of wife in acquiescence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Council of the Law Society of NSW v O'Brien [2019] NSWSC 1879 Council of the Law Society of NSW v O'Brien [2019] NSWSC 383 De Angelis v R [2015] NSWCCA 197 McLaren v R [2021] NSWCCA 12 Nahlous v R [2010] NSWCCA 58; 201 A Crim R 150 R v Burke [2002] NSWCCA 353 R v Clarke [2019] NSWDC 2 R v Cole (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, McClemens J, 10 May 1974) R v David Charles Hawkins (1989) 45 A Crim R 430 R v Dimitri De Angelis [2013] NSWDC 79 R v Duncan [2019] NSWDC 852 R v Ellis (1986) 6 NSWLR 603 R v Eugene William Daley (1983) 8 A Crim R 433 R v Hunter (1984) 36 SASR 101 R v Jafari [2017] NSWCCA 152 R v Van Tung Luu (unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Street CJ, Lusher and Roden JJ, 7 December 1984) Thorn v R [2009] NSWCCA 294 Category: Principal judgment Parties: Regina (Crown) Mark Leo O'Brien (Principal offender) Therese O'Brien (Co-offender) Representation: Counsel: Mr D. Robinson (Crown) Mr C. Watson (For Mark O'Brien) Mr J. Davidson (For Therese O'Brien) Solicitors: ODPP (Crown) Mitchell Lawyers (For Mark O'Brien) Herring and Associates Lawyers (For Therese O'Brien) File Number(s): 2019/00368261; 2019/00388998 Publication restriction: Nil Judgment Introduction 1. Mark O'Brien, who I will refer to as the principal offender, appears for sentence with respect to a number of different offences arising from his fraudulent misappropriation of some $6.178 million. In total there are ten separate substantive charges to which he has pleaded guilty. I will deal with the detail of the individual charges in the course of outlining the factual background giving rise to the offences. 2. The principal offender's wife, Therese O'Brien, also appears for sentence in relation to two offences of knowingly dealing with the proceeds of crime in respect of which she has similarly pleaded guilty. These two offences involved a proportion of the very substantial sums of money which had been misappropriated by her husband. I will deal with the detail of those charges also in the course of outlining the factual background. Factual background and offences 1. The principal offender, who is now 64 years of age, was for many years a solicitor of the Supreme Court of New South Wales. He met his wife, who is now aged 63, when they were both students at the University of Sydney. Whilst I will refer in more detail to their personal backgrounds in dealing with their subjective cases, it is to be noted that they were married, whilst still at university, in 1979. At the time of the initial offending by Mr O'Brien, they had been married for approximately 36 years. 2. Following his admission as a solicitor, Mark O'Brien worked for a number of different firms of solicitors. In 1985 he joined a small firm in the city, Harrington Maguire and Company, which had a mixed commercial and general practice. Following the retirement of one of the two principals, Mr Peter Harrington, O'Brien became a partner, together with Mr John Maguire, in 1996. The firm changed its name to Harrington, Maguire and O'Brien. 3. Evidence was led during the sentence hearing that following the loss of a major client, the small firm struggled to some extent financially. Whilst I have not been provided with any financial documentation or tax returns, there is a consistent suggestion, predominantly from the principal offender, that the practice did not enjoy the financial success of many other firms of solicitors. 4. In about 2013 the law practice moved from York Street in the city to the Edgecliff Centre. 5. By 2015 a proportion of the offender's legal practice involved matters relating to probate and the settling of estates of deceased persons. He was at that time, to all external appearances, a respected and reputable small firm solicitor. 6. In January 2015 one of Mr O'Brien's clients, Mrs Margaret Rafferty, passed away. She left an estate valued at more than $2.8 million. She had appointed her nephew as the executor of her estate. He, in turn, retained the offender as the solicitor to assist in administering and settling the estate. 7. In her will Mrs Rafferty had bequeathed not insubstantial sums of money to a number of charitable organisations. She left the sum of $100,000 to the St Vincent de Paul Society and a further $100,000 by way of legacy to the South-Eastern Sydney Local Area Health District. This amount was specifically intended to benefit the Prince of Wales Hospital She also left an amount in excess of $1.3 million to be divided equally between two charities – the Paraplegic and Quadriplegic Association of NSW (Paraquad) and the Royal Australian and New Zealand College of Ophthalmologists' Eye Foundation (RANZCO). 8. In the course of purportedly giving effect to Mrs Rafferty's intentions, the principal offender initially misappropriated the funds which had been intended to be paid to St Vincent de Paul and to the South-Eastern Sydney Local Area Health District. On 31 August 2015 he drew two separate cheques payable to himself from the trust account funds relating to the Rafferty estate, each in the amount of $100,000. He deposited the total sum of $200,000 into his personal bank account. He then sought to cover up his fraudulent and deceptive conduct by making false entries into the solicitor's firm trust ledger. Those ledger entries falsely recorded that the money had gone to the intended beneficiaries, namely the St Vincent de Paul Society and the South-Eastern Sydney Local Area Health District for the Prince of Wales Hospital. 9. The material before me does not reveal the detail of the ultimate disposition of this initial defalcation, other than the fact that it was deposited into the principal offender's personal bank account. His conduct in relation to the fraudulent obtaining of this amount of $200,000 is the basis for the first count in the charges before me. This dishonest obtaining of a financial advantage of $200,000 by deception was a contravention of section 192E(1)(b) of the Crimes Act 1900. Such an offence carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period. 10. Some weeks before this initial defrauding of Mrs Rafferty's estate, the principal offender, on 11 August 2015, had opened a new joint bank account, together with his wife, at the St George Bank. This account was deliberately opened for the purpose of receiving future fraudulently obtained funds. The evidence does not permit me to be satisfied beyond reasonable doubt that Mrs O'Brien knew that this was her husband's intention at the time. Her sworn evidence before me was that he told her at the time that it was a savings account into which they would put any excess money towards a travel fund. 11. On 18 September 2015 Mr O'Brien drew two further trust account cheques from the remaining funds of Mrs Rafferty's estate. Each of these two cheques was made payable to "T. O'Brien". The cheques were in equal amounts of $654,956.05, representing the equal amounts which had been intended to be distributed to the Paraquad organisation and also to the RANZCO Eye Foundation. The total amount of $1,309,912.10 was then deposited into the joint bank account which had been opened in his and his wife's name at the St George Bank on 11 August 2015. Prior to the deposit of these two cheques the amount in the joint account was a token amount of only just over $200. 12. This second fraudulent acquisition of funds which had been intended for the nominated charitable organisations revealed a degree of pre-planning and some level of sophistication and refinement in the steps taken to conceal the crime from ready disclosure or discovery. The joint bank account into which the funds were paid was the new account that had been recently opened in the offender's name and his wife's name. Despite what he apparently told his wife, he admitted to police subsequently that the account was deliberately opened with the intention of becoming a repository for fraudulently obtained funds. The principal offender drew the cheques in a name other than his own, by his own account so as to reduce suspicion from writing cheques in just his own name. He made false entries in the trust account ledger and prepared forged documents which purported to reflect, on their face, that the funds had gone to the originally intended beneficiaries. 13. In the case of Paraquad, he gave them a small donation in order to obtain a Donation Receipt. He then used the letterhead on that receipt to create a forged letter purportedly from the Chief Executive Officer of Paraquad dated 18 September 2015 which, on its face, appeared to acknowledge receipt of the money. This forgery was placed on the file in support of the ledger entry. It had the undoubted capacity to mislead any prospective audit of the trust account by the Law Society. In due course it undoubtedly helped to achieve that very objective. 14. With respect to the second cheque relating to the funds which ought to have gone to RANZCO, the principal offender similarly sought to cover his tracks by falsifying the Trust Account ledger and creating a forged letter purporting to have come from the charity and acknowledging receipt of the bequest. He prepared this particular forgery by using the letterhead of a genuine letter from RANZCO as a template. 15. This dishonest obtaining of the two amounts by the principal offender, in total slightly over $1.3 million, is the subject of the second substantive offence before me. It similarly is an offence against section 192E(1)(b) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment. 16. At the time of the fraudulent obtaining of the funds of approximately $1.3 million which he deposited into the joint account, the principal offender had two mortgages which were secured over the residential property in which he lived with his wife. This was a townhouse in Old South Head Road at North Bondi. As at September 2015 the two home loan mortgages came to a total of approximately $220,000. 17. On 23 September 2015 the offender drew two separate cheques, one of approximately $160,000 and the other of approximately $60,000 in order to pay off each of the two mortgages in respect of his home property. The total actual payment of $220,787.35 is the subject of the third substantive charge before me, namely knowingly dealing with the proceeds of crime. Such an offence contravenes section 193B(2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment. There is no standard non-parole period. 18. In December 2015 the joint St George Bank account which had been opened in August 2015 had a balance of approximately $1.2 million. The Agreed Facts indicate that an amount of about $1.036 million was directly attributed to the funds which had been that misappropriated. The source of the additional amount of approximately $164,000 is not apparent on the evidence before me. 19. The material before me does not disclose the precise date on which a self-managed superannuation fund was set up for both offenders. It was certainly in existence by the end of 2015. 20. On 18 December 2015 the principal offender withdrew $1 million from the joint St George account in two separate amounts of $500,000. Each of the two cheques were deposited into the Equity Case Management Trust Account conducted by the self-managed superannuation fund which he had set up, namely the 'Obiwill Superannuation Fund'. As noted earlier, both the principal offender and also his wife were the beneficiaries of this superannuation fund. 21. The fourth charge against Mr O'Brien relates to these particular transactions and constitutes an offence of knowingly dealing with the proceeds of crime contrary to the provisions of section 193B(2) of the Crimes Act 1900. As with the third count, this offence carries a maximum penalty of 15 years imprisonment. 22. Mrs Therese O'Brien is similarly charged with the same offence regarding this transaction, that is, an offence of knowingly dealing with the proceeds of crime, namely $1 million on 18 December 2015. This, of course, was the date on which her husband had withdrawn the two amounts of $500,000 from the joint account and deposited the full amount of $1 million into the superannuation fund account. Mrs O'Brien subsequently admitted that she knew that she "was involved in it" and that she had "a half share of it". There is no actual evidence of Mrs O'Brien taking any physical step to "deal with" these proceeds of crime. However the definition in section 193A of the Crimes Act 1900 includes "conceal" or "engage directly or indirectly in a transaction." Her acquiescence in the knowledge of her husband's misappropriation, falls within the definition of knowingly dealing. 23. As already indicated, knowingly dealing with the proceeds of crime constitutes an offence contrary section 193B(2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment. 24. The total amount of money misappropriated from Mrs Rafferty's estate by the principal offender was in excess of $1.5 million. Having successfully put $1 million into the superannuation fund, and having discharged the two mortgages over the townhouse in which he resided with his wife (as I have indicated earlier in an amount of approximately $220,000) the offender would appear to have settled back into a law-abiding existence as a solicitor in the suburban firm where he continued as a partner. 25. Other funds from the total amount misappropriated in 2015 were obviously disbursed including the leasing of a BMW motor vehicle; a gift of $50,000 to one of the O'Brien children; and the creation of a separate account in Mr O'Brien's own name on which he operated a credit card which was utilised for, inter alia, payment of monies otherwise liable to be paid by the law practice. The precise details of these various disbursements are not before me in any documentation but were referred to in the course of the principal offender's testimony during the sentence proceedings. Of passing significance, the existence of this separate account and credit card was not known by Mrs O'Brien. 26. However, some two years later in late 2017, with his self-confidence undoubtedly buoyed by the fact that the earlier misappropriations had not been discovered and that his forged entries in the trust account ledger and elsewhere had remained undetected despite Law Society trust account audits, the principal offender determined to try his hand at fraudulent misappropriation yet again. At this time he was giving consideration to retirement. 27. One of his clients, a Ms Aileen Delaney, had signed her last Will and Testament in May 2015. She had appointed the offender as the executor and trustee of her estate. She had given her solicitor, the offender, an enduring Power of Attorney. This power of attorney included an ability to operate her bank accounts. 28. On 27 November 2017 the offender, perchance by way of a preliminary 'tester', transferred $5000 from a bank account of Ms Delaney into his own personal account. That offence of dishonestly obtaining a financial advantage by deception contrary to the provisions of section 192E(1)(b) of the Crimes Act 1900 has been placed on a Form 1. I am asked to take it into account in passing sentence with respect to a separate misappropriation of money from Ms Delaney's account which occurred the following month. 29. Having successfully abused his position of trust as Ms Delaney's solicitor in the exercise and misuse of the power which he held under the enduring Power of Attorney, the principal offender next, on 15 December 2017, transferred $100,000 from his client's account into the joint bank account which he shared with his wife at the St George Bank. In a subsequent record of interview with police, Mr O'Brien claimed that his legal firm was in chronic financial distress. He told police that he wanted to have some money in reserve in case the firm needed some funds to be injected into the practice through the course of the following year. He told police that he did not tell his partner Mr Maguire and that he put the money into his own account rather than the firm's account because it would permit him to tell Maguire that he was contributing to the running of the firm from his personal account and hence hide his actions in having dishonestly obtained the funds. 30. This misappropriation has similarly been charged as a substantive offence of dishonestly obtaining a financial advantage by deception. It is again a contravention of section 192E(1)(b) of the Crimes Act 1900 and is the fifth substantive charge before me. The Form 1 offence will be taken into account in determining an appropriate sentence on this count. 31. I should observe that the Court is left in a state of uncertainty with regard to the assertion of the law practice being in "chronic financial distress" in 2017. The evidence with respect to the first defalcation in 2015 is that the mortgages on the O'Brien family home were completely discharged. This presumably had the effect of repaying at least those amounts that specifically related to the partnership debt. Mr O'Brien also gave evidence of having contributed some $200,000 towards firm expenses at that time and having a credit card, to which I have referred earlier, that he utilised for such purpose. No documentation regarding the firm's financial position in 2017 has been provided during this hearing. 32. Some four days after the transfer of $100,000, on 19 December 2017, the offender transferred an additional sum of $50,000 from Ms Delaney's account into his superannuation fund. His asserted explanation for this transfer, in his interview with police, was that it related to advice from his accountant. He claimed that there was a facility with the superannuation fund whereby $50,000 could be put into the fund and taken straight back out again. I am unaware and there is no evidence as to whether such a transaction may have attracted some taxation advantage. The offender said that instead of taking the $50,000 out of his own money he took it out of his client's bank account. There is no evidence before me as to whether the $50,000 deposited into the superannuation fund was, or was not, immediately removed. Other than having been deposited into the superannuation fund I have no evidence as to its ultimate disposition. 33. This further misappropriation of $50,000 on 19 December 2017 is the sixth substantive charge before me. It is, yet again, an offence under section 192E(1)(b) of the Crimes Act 1900. 34. On 7 January 2018, Ms Aileen Delaney died. On 5 April 2018 probate was granted with respect to her estate. The estate had a total value in excess of $6.6 million. Similarly to the late Mrs Rafferty, from whose estate the offender had misappropriated the earlier amounts in 2015, Ms Delaney had also bequeathed very substantial amounts of money to a number of charitable organisations. 35. Part of Ms Delaney's estate included an amount of almost $1.78 million which was a refundable deposit from the aged-care facility in which she had resided in Vaucluse. That very substantial refundable deposit had been paid when she had entered into the facility. Following her death, $1,773,486.23 was refunded by the aged-care facility. It was deposited into the trust account for Ms Delaney's estate on 21 May 2018. 36. Three days later, on 24 May 2018, the principal offender drew a trust account cheque in the full amount of the refund and made it out to his wife. The cheque included the notation "please pay cash". Both the deposit of the cheque from the aged-care facility and its subsequent withdrawal were recorded in the trust account ledger fraudulently. 37. A separate trust account ledger in the name of "Therese O'Brien" was opened by the principal offender and the entry was recorded as a deposit from "Proceeds of Estate" in her name. I would infer that these fraudulent entries were intended to create the false impression that Mrs O'Brien had been the beneficiary of an estate which had been left to her. 38. I do note that when queries were raised, in due course, by his partner in the legal practice as to the source of funds being used by Mr O'Brien and his wife, O'Brien claimed at that time that his wife had in fact been the beneficiary under a deceased estate. The creation of the trust account ledger in his wife's name would appear to have been a carefully thought out intended subterfuge for this particular misappropriation. 39. The cheque in the full amount of approximately $1.8 million was, in due course, deposited by the principal offender into the joint bank account held by him and his wife at the St George Bank. 40. This particular transaction constitutes the seventh substantive charge before me and again contravenes section 192E(1)(b) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment. 41. Shortly before the next substantial misappropriation of more than $2.7 million, the principal offender and his wife entered into a contract to purchase a house at 36 Woodstock Street, Bondi Junction. The purchase price was $3.425 million and on 11 July 2018 the deposit, in an amount of $342,500, was paid from funds drawn from the joint account held by the offender and his wife at the St George Bank. 42. On 16 July 2018 the offender withdrew a further amount from the joint account in the amount of $180,260. This money was paid to the office of State Revenue for the stamp duty with respect to the purchase of the house in Woodstock Street. 43. One of the very substantial charitable bequests which were made by the late Ms Delaney was a bequest to the St Vincent de Paul Society for an amount in excess of $2.7 million. I am unaware as to the precise calculation giving rise to the specific amount of the bequest. However, on the same day that he paid the stamp duty on the new house, namely 16 July 2018, the principal offender drew a trust account cheque from the funds of Ms Delaney's estate for the amount of the intended bequest, namely $2,740,288.12. The cheque was made payable to Mrs O'Brien and was subsequently deposited by Mr O'Brien into the joint bank account held with the St George Bank. 44. Utilising the same modus operandi that he had used almost three years earlier with Mrs Rafferty's estate, the offender created a false entry in the Trust Account ledger as well as a forged letter, purportedly from the St Vincent de Paul Society, which acknowledged receipt of the money. That document had the appearance of being on genuine St Vincent de Paul letterhead and to be under the hand of the Executive Director of the Fundraising and Communications section of the St Vincent de Paul Society. It was, in fact, a forgery which had been created by the offender, again in colloquial terms to "cover his tracks". It would appear that he followed the procedure of making a small donation and then utilising the letterhead on the receipt as a template for his more substantial forgery of an actual letter purporting to be from the charity as part of a not unsophisticated subterfuge. This defalcation of more than $2.7 million forms the basis for the eighth substantive charge before me. It is again a contravention of section 192E(1)(b) of the Crimes Act 1900. 45. On 10 August 2018 the offender drew a cheque from the joint St George Bank account in the amount of $3.06 million. This amount settled the purchase of the property at Woodstock Street, Bondi Junction. The various payments with respect to the deposit, stamp duty and the amount on settlement of the purchase of the home in Bondi was a total amount of $3,608,760. 46. The offence of knowingly dealing with the proceeds of crime in that amount between 11 July and 10 August 2018 forms the basis for the ninth count in the substantive charges before me relating to Mr O'Brien. That offence is again a contravention of section 193B(2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment. 47. The Agreed Facts indicate that following the settlement of the purchase price, the offender and his wife spent some three months renovating the property at 36 Woodstock Street. The renovations are said to have cost approximately $250,000. That expenditure is not the subject of any separate charge with respect to dealing with the proceeds of crime. It is, however, included in the Agreed Facts presumably by way of context and explanation as to the disposition of some of the funds which had been fraudulently obtained. 48. Following settlement of the purchase of the premises at 36 Woodstock Street in August 2018 the principal offender and his wife spent various sums of money drawn from their joint bank account on furnishings and furniture for their new home. Eleven comparatively minor withdrawals of the funds from the joint bank account were, in due course, identified as being expenditure of this type. Three of those purchases were in the name of Mrs O'Brien and the total amount identified as being spent in this general fashion was $53,499. An offence of knowingly dealing with the proceeds of crime in that amount constitutes the tenth and final substantive charge before me with respect to the principal offender, Mr Mark O'Brien. It is yet again a contravention of section 193B(2) of the Crimes Act 1900. 49. The second substantive offence to which Mrs Therese O'Brien has entered a plea of guilty is, in effect, a single rolled-up count of knowingly dealing with the proceeds of crime which reflects the total amounts paid for the purchase of the house, including stamp duty, together with the additional sum of $53,499 which has been charged separately against her husband as the tenth count against him to which I have just referred. The total of the amount said to have been knowingly dealt with relating to this second count against Mrs O'Brien was a total of $3,662,259. 50. I am unaware from the evidence as to whether the house was purchased in joint names, although I infer that it was. In such circumstance, presumably Mrs O'Brien would have been required to sign the contract for purchase. The Agreed Facts are silent with respect to whether any such action was in fact taken by her. However, her actions, or at least inaction, clearly fall within the definition of dealing with the proceeds of crime, as I have noted earlier. Such an offence is a contravention of s.193B(2) of the Crimes Act 1900 and, as noted previously, carries a maximum penalty of 15 years imprisonment. Discovery of the offending 1. The chronology tendered in the sentence hearing on behalf of Mrs O'Brien indicates that the North Bondi townhouse was sold for $1,495,000 in November 2018. That chronology suggests that a mortgage was discharged on the sale. It is unclear whether or not that was so, or whether it merely reflects Mrs O'Brien's belief, given that the mortgages on that property had been discharged with funds misappropriated from Mrs Rafferty's estate in 2015. The Agreed Facts state that Mr John Maguire, being aware of the purchase price of the premises at Woodstock Street and the sale price of the old property became suspicious as to the source of funds for the new house. 2. At some time, which I infer was likely to be in about January 2019, Maguire asked Mr O'Brien where he had obtained the funds to purchase the Woodstock property for almost $3.5 million, given the sale price of the North Bondi townhouse, at less than $1.5 million. The offender indicated that the funds had been acquired through a grant of probate in which his wife was a beneficiary. Mr Maguire demanded that the source of the probate grant be disclosed. Mr O'Brien subsequently provided a written letter to his business partner in the legal practice on 14 February 2019. That letter asserted that Mrs O'Brien had taken independent advice herself and that Mr Maguire had no right to any information as to her personal financial affairs. The letter made reference to the possibility of discussions with the Law Society or police and Mr O'Brien requested that Mr Maguire should have enough faith in his integrity to accept the explanation as to the steps which had been taken to preserve Mrs O'Brien's confidentiality. 3. Mr Maguire, however, called in an accountant to audit the firm's trust accounts. That audit located the trust account ledger in the name of "Therese O'Brien" which recorded the payment of the $1.78 million which had come originally from the reimbursement of Ms Delaney's aged-care facility deposit. 4. By 19 February 2019 Mr Maguire had ascertained the misappropriation of the aged-care facility refund and confronted Mr O'Brien. Later that same day John Maguire reported the matter to the Law Society of New South Wales. 5. On 21 February Mr Maguire had a further conversation with the offender which included an observation by Maguire that the "…stealing of this money cannot be characterised as something done on the spur of the moment. It must have been long-planned." The offender replied, "yes, that is right." 6. I will refer to the detail of the subsequent admissions by both offenders and their ultimate pleas of guilty to the charges before me later in these remarks. Objective seriousness 1. Despite the absence of a standard non-parole period, it is appropriate that I make a finding with respect to the objective gravity of the offending. I do not propose to make separate findings with respect to each of the substantive charges which have been preferred against the principal offender. It suffices to observe, by reference particularly to the abuse of his trusted position as a solicitor, having regard to the steps that were taken to successfully disguise the initial defalcations, which had to a considerable degree been repeated in the later offending, and taking into account the inordinately large amounts which were obtained, that his offending falls above any identifiable mid-range of objective seriousness. 2. The objective seriousness of the two substantive charges against Mrs O'Brien, although reflecting egregious criminal conduct, derive, at least initially, from what might be perceived as, effectively, a misprision of felony. She, as I will indicate later in these remarks, initially told her husband to return the money when she became aware of his actions in 2015. However, she ultimately acquiesced in his decision to put $1 million into the joint superannuation fund. She did not report him to police. Some years later she again acquiesced and then cooperated in the purchase of the new house in Woodstock Street. She ultimately, however, played an active role in the purchasing of some of the items included in the $53,000 which was spent on furniture and furnishings. However viewed, her criminal conduct was very substantially less objectively serious than that of her husband. Subjective features relating to both offenders 1. On behalf of each of the offenders, a number of expert reports setting out reference to each of their personal histories as well as character references were tendered. In addition, each of them gave sworn evidence during the sentence hearing. 2. Mark O'Brien was born in Sydney on 2 June 1956. The first group of offences occurred in 2015 when he was 59 years of age. The second group of offences occurred in 2017 and 2018 when he was respectively 61 and 62 years of age. He is now aged 64. 3. He was the youngest of three siblings. He grew up in Double Bay where his father conducted a business. His father died when he was three years of age and he grew up in the care of his mother who never remarried. The family were able to live off income which had been derived from his father's business and investment properties although his mother eventually undertook part-time work. His older sister was 18 years his senior and his brother was 14 years older than him. They respectively helped looking after him prior to their leaving the family home and marrying. 4. The offender attended Waverly College from Year 6 to Year 12. He was Vice Captain of the school and on graduation, in 1974, was selected to give the Valedictory speech rather than the School Captain which would otherwise have been customary. He was described as a popular student. He matriculated and attended the University of Sydney where he studied a combined Economics/Law degree. 5. Mrs Therese O'Brien, on 17 November 1957, was similarly born in Sydney. She attended St Charles' Catholic Primary School at Waverley and then high school at St Clare's College, Waverley. After completing the Higher School Certificate in 1975, she enrolled in a Bachelor of Science degree studying pharmacology at the University of Sydney. 6. In 1977, at the age of 19, Therese Williams, as she then was, met and started going out with Mark O'Brien. In January 1979 she discovered that she was pregnant. She gave evidence in the sentence proceedings that she was very concerned about her future life. She said, "it was a bit of a bad time for me". Mark O'Brien said that he would marry her which she said "was great, a good relief for me at the time". She told the Court, as she told her psychologist, that she was really grateful for the fact that he decided to marry her. 7. Mrs O'Brien described that sense of gratitude as having had an ongoing effect on their relationship. She described herself as being very loyal. She described her ongoing connection in the relationship as being, "a mixture of that loyalty to Mark and it was – I married him for better or worse and I was grateful to him, so yes, all of those things". 8. Mrs O'Brien, who was most of the way through her science degree specialising in pharmacology, abandoned her degree as a consequence of her pregnancy. She and Mr O'Brien married during 1979. She gave birth to their first child, a son, in September 1979. She never resumed her studies nor did she ever pursue her professional aspirations. 9. Mr O'Brien graduated from the University of Sydney and was admitted to practice as a solicitor in 1980. He obtained employment as a solicitor at Abbott Tout Creer and Wilkinson. He worked in the Third Party section of that firm, which was retained by the NRMA. 10. In November 1981 Mrs O'Brien gave birth to their second son. 11. In 1983 Mr O'Brien changed firms and moved to the GIO. He worked in the Third Party personal injury section for approximately three years. 12. The GIO provided an opportunity for the obtaining of home loans at a discounted interest rate for its employees. In February 1984 the offender and his wife purchased a home at Concord for $64,000. 13. In June 1985 their third child, a daughter, was born. In November 1985 Mr O'Brien commenced employment, as an employed solicitor, with Harrington, Maguire and Company. As I have already noted earlier in these remarks he remained as an employed solicitor with that firm for approximately 10 years. 14. In 1988 the family sold the house at Concord and purchased a house at Mortdale for $173,000. Mr and Mrs O'Brien and their three young children moved into that property in May 1988. 15. In 1992, after her daughter had started school, Mrs O'Brien undertook and completed an administration/bookkeeping course with NSW TAFE. She subsequently obtained part-time employment during school hours as an administration bookkeeper at the Occidental Hotel in the city. 16. The three O'Brien children attended Catholic Parish schools in the local area where they lived near Mortdale. 17. In about 1996 or 1997 one of the two partners at the solicitor's firm, Peter Harrington, retired. Mr O'Brien became an equity partner in his place and took over his practice. The firm apparently conducted its business with an overdraft and some level of security was taken over the O'Brien family home as security for him assuming responsibility for part of the firm's debt. 18. Although no evidence was called from the other partner John Maguire and no documentation with respect to the firm's finances has been tendered, the evidence given by Mark O'Brien described, in effect, a small firm which was in debt from the time Mr O'Brien went into partnership. His evidence was suggestive, without precise figures, of the practice being able to pay its partners a modest income, but apparently never clearing its indebtedness. 19. Mrs O'Brien apparently remained in her part-time employment until 2001 and she took employment as an office manager at an air-conditioning firm. I am unaware as to whether that position was full-time or part-time. By 2001, the two older boys were approximately 23 and 20 years of age and the youngest, their daughter, was about 16. Mrs O'Brien remained in this employment until 2009. 20. In 2004, both offenders were ordained as secular, or Third Order Franciscans. This is a lay order in the Roman Catholic Church which follows the teachings of St Francis and St Clare of Assisi. Mrs O'Brien gave evidence that they did a lot of volunteer work helping the marginalised and working with the poor, the homeless and other persons in need. They attended fraternity meetings monthly and were both on the relevant committee. Apparently Mr O'Brien was president of that committee. 21. In 2009, by which stage the children were approximately 30, 27 and 24, Mr and Mrs O'Brien purchased a townhouse at North Bondi for $780,000. The property was said to have a mortgage, in an amount of approximately $300,000 according to the recollection of both offenders. 22. In 2012 the bank facility which financed the law partnership's ongoing debt was withdrawn by the National Australia Bank. Mr O'Brien gave evidence in the sentence hearing that in their most recent application for refinancing, his partner Mr McGuire had not disclosed a significant debt which he owed to the Australian Taxation Office. The partners consequently had to refinance with an alternative bank. 23. In December 2012 the offender's home in Old South Head Road, North Bondi was refinanced and mortgaged with the Commonwealth Bank. The evidence regarding the size of the partnership debt was somewhat amorphous. It is not clear how much of the original mortgage of $300,000 related to the partnership debt. Nor is it clear whether there was merely one mortgage or two at that stage. 24. In February 2013 the office of the law firm, Harrington Maguire and O'Brien moved from York Street in the city to an office at the Edgecliff Centre. The principal offender said in his evidence that the move enabled the practice to save a substantial amount of rent. 25. By this time, it would appear that Mrs O'Brien had stopped working. Their children had variously married, some of them had children, and both boys were divorced. Mr O'Brien continued with the practice at Edgecliff until the first of the misappropriations in 2015. Reports and references regarding Mark O'Brien 1. On behalf of Mr O'Brien, a medicolegal report from a Consultant General and Forensic Psychiatrist, Dr Gerald Chew, was tendered. Dr Chew received a letter of instruction from Mr O'Brien's solicitors and conducted a psychiatric assessment by a video conference on 29 September 2020. In his report dated 15 October 2020 he set out the background and history provided to him by the principal offender. He noted that Mr O'Brien was being treated for major depression and had been on antidepressant medication since September 2019. He noted the offender's attendance upon a psychologist at Edgecliff as well as consultations with a psychiatrist, Dr Anthony Levine at St Leonards, who was said to be seeing the offender every six weeks. 2. Dr Chew took a history of depressive symptoms dating from around 2006. The offender told him of chronic feelings of emptiness and hopelessness and described fatigue and low energy on most days. He described to the psychiatrist a perceived need to metaphorically wear a "mask" when interacting with his wife or with his former partner of the law firm, as well as with clients. Mr O'Brien described these symptoms as having worsened over the years. He described living from day-to-day with no hope or concern for the future. 3. Dr Chew noted a history of a less than satisfactory relationship between Mr O'Brien and his partner in the legal practice, Mr Maguire. The offender described having clashed with Mr Maguire about a variety of work practices, mostly about billing and financial practices. Mr O'Brien told the psychiatrist that he had been extremely worried that the business would fail. He described his commission of the offences as having become despondent about his future. He told the psychiatrist: "I was 58 with business difficulties meaning poor earning capacity, no superannuation and a $250,000 mortgage." 4. The psychiatrist took a medical history which included a variety of medical conditions, all of which would appear to be being treated appropriately and most of which would appear to be consistent with the offender's chronological age. 5. Based upon the history given to him and his assessment in the video conference, Dr Chew opined: "His psychiatric diagnoses (sic) is a 'mental illness' as defined by the Mental Health (Forensic Provisions) Act 1990, being a severe disturbance of mood." 6. I observe in passing that there is no definition, as such, of "mental illness" in the Mental Health (Forensic Provisions) Act 1990. Rather, the definition of "mental illness" is found in the Mental Health Act. Dr Chew acknowledged that this was an error in his report and described it, in his oral testimony during the sentence proceedings, as "trying to appear more clever than I am maybe." 7. The ultimate thrust of Dr Chew's opinion was, based upon the history given to him by the offender, that he believed that Mr O'Brien had been suffering a major depressive disorder for many years and that it was of such a severity as to be defined as a "mental illness". Based on the history given to him he was of the opinion that the mental illness "may have contributed directly to the commission of the offending behaviour. His major depression with low mood and hopelessness with a day-to-day focus may have contributed to his inability to realise the significance of his actions at the time." 8. In addition to his opinion that there may have been a causal connection to the commission of the offending behaviour, Dr Chew also expressed the opinion that the presence of the major depressive disorder would make the serving of a sentence in custody more harsh. Dr Chew thought that custody may perpetuate the mental illness and that it would be more difficult to obtain treatment in an optimal manner in custody. Dr Chew also expressed the opinion that the offender's "socio-demographic background" may contribute to difficulty "fitting in" in the custodial environment, thereby perpetuating his illness. 9. The Crown required Dr Chew for cross-examination and sought to challenge some of his opinions. 10. In evidence-in-chief the doctor expanded on his opinion that there "may have" been a causal connection with the offending and said that it was more likely than not that the offender did have a major depression during the relevant period and that it was more likely than not that this major depression "would have had some impact on his behaviour at the time". 11. The Crown, in cross-examination, pointed out that the offending conduct covered a period of close to three and a half years. It was put to the psychiatrist that during the entire period the offender was functioning as a partner in a law firm and carrying out the duties of a solicitor and partner in the firm. The doctor was asked to assume that there were no complaints made to the Law Society about the conduct or work of the offender during that period. 12. The psychiatrist said that those facts were "not necessarily inconsistent" with someone suffering from a major depressive disorder but that if there had been complaints "then that would be more consistent with someone suffering from a major depressive disorder." The doctor said that it was possible that there could have been some kind of decline in function in the work setting which would not necessarily have to reach the point of complaint to the Law Society. 13. I should interpolate that there is no evidence before me of a decline of function in the workplace during the period of the offending. 14. The Crown asked whether or not it would be obvious to anybody in the workplace that the offender was struggling from a major depressive disorder during the period of offending. Dr Chew responded that in some cases that would be a correct proposition although while some people with major depressive disorder can be very obvious, with other such as Mr O'Brien "it may not be necessarily as obvious". Dr Chew ultimately agreed that "people that work with someone closely for a long period of time, it would lend more weight to the diagnosis if there had been reports at work, but I don't think it's necessarily inconsistent." 15. Dr Chew went on to express the opinion that the depressive disorder which he diagnosed pursuant to the criteria in DSM-V led him to conclude that it was "moderate" in its severity. The Crown put to the psychiatrist the detail of the planning and the sophistication of the steps taken to cover up the criminal offending by the offender. The doctor was asked whether such detailed and planned behaviour was consistent with someone suffering from a moderate major depressive disorder. Dr Chew responded, "I don't think it's necessarily inconsistent. It does show that obviously he had some degree of cognitive capacity and planning." The psychiatrist agreed that it went further than illustrating cognitive ability and that it may go to an understanding by the offender of the wrongfulness of his actions. Dr Chew agreed that the summary of facts that he was asked to assume did "sound like there was systematic planning over a number of years." 16. In re-examination Dr Chew said that his opinion that the mental illness "may have contributed directly to the commission of the offending behaviour" was still held by him. 17. The question of a causal connection between a psychiatric condition and the commission of an offence is a vexed area. The factors pointed out by the Crown in cross-examination of Dr Chew bear upon the ultimate assessment that this Court is called upon to determine. Whether or not the offender was labouring under an undiagnosed mental illness as defined during the period, according to Dr Chew, from about 2010 onwards, or earlier, requires a degree of speculation and an acceptance of the descriptive history provided by the offender to Dr Chew. 18. I am not persuaded on the balance of probabilities to an acceptance of the very qualified opinion of Dr Chew regarding a causal connection between the offending and a continuing major depressive disorder. 19. A report was also tendered from Dr Roy Sugarman, a clinical psychologist and neuropsychologist. That report, dated 25 October 2020, bears a note on it: "this is a treating clinical psychologist's report and should not be considered an expert witness report, but rather a witness to fact." 20. Dr Sugarman was Mr O'Brien's treating psychologist following his disclosure of his criminal offending in 2019. As at the date of the report he had most recently seen the offender some three and a half months earlier in July 2020. The treating psychologist had obtained a history that Mr O'Brien had struggled from an early age with difficult adjustments to his home, school and work environments. He was said to have developed signs of significant anxiety and mood disorders since childhood. Dr Sugarman described a picture of what would appear to have been a life-long level of depression and melancholia. His actual terminology was a "life-long grumbling dysthymia". The psychologist described "learned helplessness and a lack of assertion in a career that punishes both traits, and the exigencies of a lacklustre career" as having left the offender "a sad and depleted middle-aged man who should have been treated from 1997, if not from 1979, for anxiety and mood issues." 21. Doctor Sugarman made reference to a number of symptomatic indications of what he believed was significant and untreated, chronic major depressive disorder. He had first seen Mr O'Brien following the discovery of his criminal offending. Mr O'Brien had subsequently attended therapy since March 2019. There is no indication as to how many sessions had actually been attended although it was described as "serially". He had last seen the psychologist in July 2020. Mr O'Brien was said to have developed: "… significant insight into the family processes that have dominated his life, and the learned helplessness that led to his loss of perspective in his work and home life. He understands why his life has been dominated by a black mood that has consumed him and robbed him of his happiness." 1. The psychologist expressed a concerned that he may suffer a deterioration in his mental health, which had improved considerably with treatment, in the event of his incarceration. The psychologist also made reference to the offender's low mood appearing "to have reflected in his children's own psychological and relational issues". Other than noting the fact that two of Mr O'Brien's adult children are divorced, there is no material before the Court to illuminate this somewhat opaque reference. 2. An additional psychological report dated 29 October 2020 was also tendered on Mr O'Brien's behalf. That report is from the clinical psychologist, Amanda Gordon. Her short report indicates that she had initially consulted with Mrs O'Brien who had been referred to Ms Gordon by her general practitioner. On one occasion in 2019 Ms Gordon met Mr O'Brien together with his wife. He was receiving psychological care from another psychologist but was said to be still depressed. I infer that the other psychologist was likely to have been Dr Sugarman, who as I noted earlier thought that the treatment had been successful. Ms Gordon thought there was no doubt in that one session that Mr O'Brien appeared to be significantly clinically depressed at that time. 3. In September 2020 Mr O'Brien was referred to Amanda Gordon by his GP "to assist him in his emotional preparation for sentencing and likely incarceration". She saw him on six occasions. She said that "by September" (sic) there was no evidence of depression and Mr O'Brien was amazed how he felt less distressed than he had for many years. Whilst I am uncertain as to the reference to dates, the letter from Ms Gordon appears to imply that the consultations with her had facilitated the lifting of the depression. 4. She described Mr O'Brien as now expressing extreme remorse for his behaviour. She described that he remained puzzled that he, as a member of a lay Franciscan order who viewed himself as a moral creature, could have behaved as he had done. She noted that Mr O'Brien had friendships with people who he had known since University days and that he feels well supported by them. She described him as having focused on strategies for managing his mood during a term of incarceration. She expressed the opinion that if he was able to do something meaningful during such a term "he is unlikely to suffer significant emotional consequences". 5. Mr O'Brien's solicitors also obtained a medicolegal report from a further clinical psychologist, Ms Anita Duffy. She interviewed and assessed Mr O'Brien on 27 July 2020. 6. Ms Duffy took a detailed history from the offender regarding his family background, education and subsequent employment. She also recorded an account of his medical history and the detail of mental health consultations and treatment following the disclosure of his offending behaviour. She described the consultations with the psychologist Dr Sugarman and also the consultations with the psychiatrist Dr Tony Levine at St Leonards for treatment. She noted that the offender presumed that both Dr Sugarman and Dr Levine would present their reports concerning their diagnosis and treatment to the Court. I should note in passing that no report from Dr Levine has been tendered. 7. Ms Duffy also took a detailed history of Mr O'Brien's account regarding his offending behaviour. That overall account focused, as did his evidence before me, on the asserted financial stressors from the legal practice. Some of the detail regarding the disbursement of the misappropriated funds differs, to some degree, from the evidence given during the sentence proceedings. By way of example, the account given to Ms Duffy is that the offender lent each of his 3 adult children $250,000 interest free. 8. However, his evidence on oath during the sentence hearing before me (and in accord with evidence tendered in the Supreme Court proceedings to which I will refer shortly) was that he provided $400,000 to each of his children and that one of his sons had not returned $300,000 of the sum he had received. 9. Ms Duffy undertook an assessment of the offender utilising the Personality Assessment Inventory. The profile from that assessment reflected some difficulties with depressive symptoms. The offender appeared to be pessimistic and dwelled on thoughts of worthlessness, hopelessness and personal failure. Ms Duffy thought that a possible diagnosis was Adjustment Disorder with Depressed Mood. She described that his decisions to misappropriate funds to bolster his finances had occurred during a lengthy period where he had experienced persistent worry about financial security. She recorded that his stated reasons for taking the funds included his perceived "need to do so" and to find a solution to their financial problems. Ms Duffy referred to detailed literature regarding the motivations of white collar criminals which suggested three conditions: incentives and pressures; opportunities; and attitudes and rationalisation. She also noted that the commission of an offence can enable avoidance of personal or business threats. In Ms Duffy's opinion: "Mr O'Brien's continuous financial crisis gave him the incentive to commit the offences; he had opportunity to misappropriate the funds from client's legacies held in the business trust funds and avoid threats to his future security." 1. Ms Duffy expressed her professional opinion that the "...offences were directly related to the need for, and availability of funds through his profession as a lawyer. There is little risk of reoffending in such a manner in the future." 2. I am constrained to observe that the Law Society of NSW is hardly likely to permit Mr O'Brien to operate in such a position of trust in the future. 3. In addition to the above professional reports, a number of testimonials were also tendered. A short reference from a Mrs Barbara Davis dated 5 August 2020 indicated that she had been a client of the principal offender. She had retained Mr O'Brien as a solicitor following the loss of her husband in August 2006. She described him as at all times acting with integrity and professionalism. She said that he went far above the call of duty in helping her to deal with some difficult and unhelpful trustees. He had also helped her with conveyancing and the transfer of her late husband's shares into her name. 4. A reference was also tendered from Monsignor Tony Doherty AM. Monsignor Doherty had known the offender and Mrs O'Brien for a period of 15 years. Initially he was their parish priest. He described, however, that this basic relationship had grown into a far deeper appreciation of the breadth of the personal lives of Mr and Mrs O'Brien. He described both Mr and Mrs O'Brien as having been exceptional members of St Mary Magdalene's parish at Rose Bay. He described Mr O'Brien as having been an integral member of the parish and having been involved in prosecuting the goals of the parish such as building community; reaching out to the marginalised and the lonely; and offering welcome and hospitality to newcomers. The Monsignor stated that Mr O'Brien had earned the respect of many other parish members. He had contributed to what was described as "the very adult discussion of how the parish might move forward in the light of the widespread incidents of sexual abuse." Monsignor Doherty further stated: "Mark has always convinced me that he is a responsible, concerned and thoughtful members of our society." The Monsignor also indicated that the offender had offered "a sense of genuine contrition for the serious crime he has committed." 5. An additional reference was also tendered from Barry Mahoney QC. Mr Mahoney, of course, is well known as a former Judge of this Court. Mr Mahoney has provided a detailed and extensive reference dated 4 November 2020. He has known the offender since before the marriage of Mr and Mrs O'Brien in 1979. Indeed, Mr Mahoney attended the wedding. That is hardly a surprise in circumstances where Mrs Therese O'Brien is in fact the niece of Mr Mahoney. 6. Mr Mahoney indicates that he had remained in contact with Mr and Mrs O'Brien throughout the years of their marriage, albeit not on a regular basis. He described his familiarity and close contact with them including the providing of an unsecured loan to help facilitate their initial purchase of a home. Such a close connection arose because Therese O'Brien had been the first grandchild of Mr Mahoney's own father. 7. In his testimonial Mr Mahoney refers to discussions that he had with Mark O'Brien with respect to his professional employment as a solicitor. He described the opinion that he held at that time that with Mr O'Brien's "personality and competence" he could do better professionally if he was elsewhere than the Government Insurance Office (GIO) where he was then working. 8. At that time, one of the private firms which briefed Mahoney QC was Harrington Maguire and Company. Mr Mahoney expressed the view that this was probably because his then wife was the oldest sister of John Maguire. Be that as it may, Mr Mahoney was instrumental in introducing Mr O'Brien to John Maguire. Mark O'Brien was consequently employed by Harrington Maguire and Company which firm continued to brief Mahoney QC. Mr Mahoney has expressed the opinion, "whenever Mark was their solicitor instructing me I was very impressed by his diligence and knowledge of the relevant law." 9. Mr Mahoney described in his reference that after what he considered to be an adequate settling in period for Mark he asked John Maguire whether he was satisfied with Mark's performance in the firm. John gave Mark a glowing assessment and in due course Mark O'Brien became a partner in the firm. Its name was changed to Harrington, Maguire and O'Brien. I should note in passing that Mr O'Brien commenced as an employed solicitor in 1985. In 1986 Mahoney QC was appointed to the bench of the District Court. Mr O'Brien became a partner at the firm in 1996. 10. Mr Mahoney's reference also sets out the circumstances of him having recommended Mr O'Brien to handle a piece of interstate litigation. He describes Mr O'Brien as having won the case and Mr Mahoney receiving thanks for having provided the recommendation. Mr Mahoney also described that client's admiration for Mr O'Brien's "skill and efficiency". 11. Against the detailed background which he had set out, Mr Mahoney said that he felt adequately qualified to express a valid opinion of Mark O'Brien as a person. He described him as a quiet, even tempered and reliable gentleman. He said that he knew him to be a quiet, intelligent, very well read person who was devoted to his wife and his three children. 12. Following disclosure of the misappropriation of funds, the offender telephoned Mr Mahoney and told him of his criminal conduct. He advised Mr Mahoney that he was about to surrender his Practising Certificate that very day. The retired judge stated: "I am still amazed at him having done what he did, because it is so out of character for the man I have known, liked and respected for about 40 years." Mr Mahoney underscored the regard in which he has held the offender and states in his reference that Mr O'Brien had been him own solicitor in conveyancing and testamentary matters and that Mr Mahoney had given to him his own power of attorney. Reports and references regarding Mrs Therese O'Brien 1. As noted above with respect to Mr Mark O'Brien, a letter from Amanda Gordon psychologist was tendered in support of his case. The introductory paragraph in that letter dated 29 October 2020 indicated that Amanda Gordon had initially been the consulting psychologist engaging with Mrs O'Brien following a referral from her general practitioner Dr Bruce Solomon. It appears that the GP prescribed anti-depressant medication, Citalopram, for Mrs O'Brien following the disclosure of the criminal conduct. Mrs O'Brien subsequently attended the psychologist Ms Amanda Gordon for treatment during 24 sessions conducted since 25 March 2019. 2. A short clinical note prepared by Ms Gordon dated 25 July 2020 provided an overview and helpful summary of those consultations. 3. Relevant portions of the summaries of the clinical notes include the following: "Question is why did she acquiesce? That's what they'll hang the case on About 25 years ago she gave Mark an ultimatum. Leave John [Maguire] and the firm or lose marriage. Believes she meant it. He did not respond. Then rang and said, 'this is who I am. You have to accept it.' She buckled (had three kids and a mortgage). Realised he was fixed to the firm. The best he could do. His life was in a dead end and he was happy with it. She thought on and off of leaving for years. She always felt grateful to him for marrying her when she was pregnant – shame – he stuck by her. Didn't fight enough – for him or for herself. She couldn't influence him in relationship to his work – had no input." 1. The abbreviated notes of the psychologist went on to record that Mrs O'Brien had qualified as a bookkeeper and had the ability to type. She had offered to help out in the legal practice and believed that she could have done the books. Mr O'Brien wouldn't have her. 2. Mrs O'Brien gave a history to the psychologist of having always tried to get work for her husband. She had touted him everywhere. She said that he was good and that he had once won in the High Court. She said that he didn't share anything with her and kept business matters separate. She described that in her view the only thing about which her husband was confident was that she would never leave him. Their Catholicism kept them bound. She described having grown up and been educated in a Franciscan school and, as I have indicated earlier, becoming a secular Franciscan in the mid-1990s. Ironically, she described the Franciscan ideal as a simple life in which one cast off material goods. She was very active in her pursuit as an ordained secular Franciscan – feeding the homeless, visiting and supporting people, and praying at home both morning and night. 3. She described to the psychologist in around 2012 that she and Mr O'Brien had left the fraternity because it had been side-tracked by people who hijacked the committee. They had stopped helping the needy and stopped morning and evening prayers. 4. Mrs O'Brien told the psychologist that when they had gone on an overseas trip in 2012, Mark had told her that he would leave the firm on their return and join the legal firm Carrol & O'Dea. She was excited. They had a good trip. It turned out to all be a lie. These events subsequently coincided with the need to refinance leading to the fresh mortgages with the Commonwealth Bank. Mrs O'Brien recounted to the psychologist her contribution to facilitating the firm moving to the Edgecliff Centre and reducing office space and expenses. 5. Mrs O'Brien detailed her understanding of a debt of approximately $200,000 owed via the firm. She said they had assets earning money and they could have covered the debt. The problem was the mess the firm had got into. At the time of her consultations with Ms Gordon Mrs O'Brien described herself as having become "more Franciscan now than she ever was". She was now employed permanent part-time with a medical practice. 6. A comprehensive report was also tendered on behalf of Mrs O'Brien from Dr Peter Klug, forensic psychiatrist. 7. He had interviewed Mrs O'Brien on 18 August 2020. In the history taken by Dr Klug regarding the commission of the offences, Mrs O'Brien told him that she had tried to get her husband to put the money back when she first became aware of the defalcation. She described being scared about knowing what to do and what was likely to happen to her husband. He told her "it's done and I can't put it back". She described having been kept out of involvement in his work and having had no control over financial decisions at any time in the marriage. She described it saying "I hate to say it but I was like a housewife". She described having effectively given up at the point of transferring the funds into the superannuation fund. She said that she wasn't strong enough to resist and was angry with her husband. She thought in hindsight that her husband had been suffering from depression. 8. She became aware of the 2018 misappropriation when her husband set about looking for another house. She told the psychiatrist: "I couldn't believe he'd do it again – then he said he'd retire – which was great because then he wouldn't do anything like this again – I thought he could finally get away from the toxic firm." 1. She told the psychiatrist that she did not report her husband as she felt "terror". She said that she felt completely "boxed in". She described a fractured relationship with her children as a result of the disclosure of the offending and a further fracture between the children, some of whom had repaid the money advanced to them, whilst their second son had not. She had been prescribed anti-depressant medication in the context of her having gone to The Gap in the middle of 2019 to consider suicide. 2. The consultation with the psychiatrist took place by video conference under Covid-19 restrictions. She presented as anxious and depressed. There were no features of psychosis or dissociation. She described being in a chronically dysfunctional marriage. 3. Dr Klug's ultimate professional opinion was that Mrs O'Brien suffers from "a probable recurrent major depressive episode with her current state being a probable major depressive disorder in partial remission". He described her first major depressive episode as being probably in 1979 or thereabouts relating to the circumstances of her initial pregnancy. He thought that there was a recurrence in the mid-1990s when an impending marital separation had been on the cards and then again in 2013 when there had been a threat of foreclosure on the mortgage on their house and the need for re-financing. Dr Klug thought that she had occupied a passive stance in the marriage in the context of a husband who was secretive and controlling. 4. Dr Klug was not of the view that her depressive illness had interfered with her ability to distinguish between right and wrong. He thought she had been placed in a very difficult situation when her husband revealed to her the misappropriation of funds in 2015 and again in 2018. He said: "Ms O'Brien is a very religious person and described their marriage as having been held together by their religious faith. The prospect of disrupting the marriage by reporting her husband to the authorities therefore provided her with a severe conundrum. She took the path of maintaining the marriage but also benefited financially by doing so." 1. A sentencing assessment report was requested by the Court. The Senior Community Corrections Officer, Stephen Kleboe, has provided a report dated 5 March 2021. It refers to Mrs O'Brien's current employment, 4 days per week as a receptionist for an ophthalmologist. Her current employer has described her as diligent and highly valued. She was reported as recognising that she had become complicit in her husband's offending following her failure to take any action after telling him to put the money back. She was assessed as having a low risk of re-offending and suitable to undertake community service work. Relevant factors to be taken into account in determining sentence: disclosure of offending; an 'Ellis' discount; restitution; plea of guilty; remorse and contrition 1. As indicated earlier in these remarks, the initial discovery of the misappropriation of trust funds came to light following inquiries by Mr Maguire in February 2019 after he became aware of the purchase price of the Woodstock Street property. Those inquiries led to the discovery of the initial misappropriation of the repayment of the deposit from the aged-care facility of Ms Delaney, of approximately $1.78 million. Mr Maguire confronted Mr O'Brien, as I have referred earlier, on 19 February 2019. 2. In discussions with Mr Maguire on 21 February 2019, the detail of which is set out in the Agreed Facts, the principal offender suggested that he would make arrangements to repay the amounts which had been ascertained as being misappropriated from the Delaney estate, the intended charitable beneficiaries could then be paid in accordance with the testamentary intentions of Ms Delaney, and the matter could then be considered closed without the necessity of involving the Law Society. It is unclear as to whether the full extent of the misappropriation from Ms Delaney's bank accounts and subsequently from her estate was ascertained or revealed at that time. Similarly, it does not appear that any disclosure was made at that time of the 2015 misappropriations from Mrs Rafferty's estate. However, Mr Maguire had in fact already reported at least the defalcations of which he was aware from the Delaney estate to the Law Society of New South Wales some days earlier on 19 February 2019. 3. Following his discussions with Mr Maguire on 21 February 2019 the principal offender attended the Law Society himself. It would appear that his disclosures to the Law Society at that time only related to some of the misappropriations. That offer was not taken up at the time. 4. The Law Society immediately suspended the principal offender's practising certificate and commenced an investigation. During the course of that investigation, other defalcations than were initially admitted by Mr O'Brien came to light. 5. At some stage, the Law Society investigation and the evidence gathered were referred to the NSW police. Mrs O'Brien apparently retained separate legal representation and in March 2019, through her lawyers, contacted investigating police and offered to assist them with their investigations. 6. On 4 April 2019, the Law Society of New South Wales sought freezing orders against both offenders. A summons was filed in the Supreme Court and the judgment and orders by Campbell J on that date have been tendered before me (See Council of the Law Society of NSW v O'Brien [2019] NSWSC 383). It would appear that there was a high degree of cooperation by both offenders by that stage in endeavouring to sell the property in Woodstock Street and to make arrangements to transfer into a trust account of the Law Society's nomination, the accumulated amount held in the self-managed superannuation fund which, following the sale of shares which had been purchased with the misappropriated funds, was an amount in excess of $1.9 million by that time. Given the arrangements volunteered by Mr O'Brien's solicitor, Mr Kevin Emanuel, whose level of cooperation Justice Campbell described as being impressed by, but not surprised, and given a desire to not adversely affect the potential sale price of the Woodstock property by giving the impression that it was a forced sale, freezing orders were not found to be necessary with respect to those principal assets. However a freezing order was made with respect to the bank accounts of both offenders. A costs order in favour of the Law Society was made against both offenders. 7. It would appear that the Woodstock property was subsequently sold for an amount of $3.6 million. This would represent an increase in the value of the property over its purchase price by the offenders of some $175,000. The full amount of that sale price was applied to restitution of some of the misappropriated funds. In due course, although I have not been furnished with the precise figures, the realisation of the superannuation fund and the investments it had made, together with the sale price of the Woodstock property, together with the return of some of the funds of $1.2 million which had been advanced to the three adult children of the offenders, resulted in very substantial restitution of the principal sums which had been misappropriated. As will become clear, in due course the full amount of principal has now been repaid, although there remains a not insubstantial question regarding the quantum of interest which the charitable institutions had lost as a consequence of not receiving the principal sums. 8. On 29 October 2019 Mrs O'Brien attended Waverley Police Station and participated in a record of interview. She made full admissions as to the circumstances in which she became aware of her husband's misappropriation of the funds, her acquiescence in the deposit of monies into the superannuation fund and the subsequent purchase of the Woodstock property. She also admitted her active participation in the purchase of some of the furniture and furnishings acquired for that new home. 9. On 22 November 2019, Mr O'Brien attended Waverley Police Station on which occasion he participated in a record of interview in which he made full admissions. He was then arrested and charged. He was granted bail and has remained on conditional liberty up until the present time. 10. In December 2019, Mrs O'Brien was similarly arrested and charged. She was also granted bail which has continued to the present time. 11. On 19 December 2019, the restraining order in respect of some of the assets of both offenders which had been made by Campbell J in April 2019 was brought back before the court. The earlier orders had permitted the payment of "legal expenses" from the funds held by the Law Society, and although some legal expenses had been approved by the Law Society, a dispute had arisen as to whether the expression "legal expenses" extended to the costs of the criminal defence of each of the offenders. 12. Mr Stitt QC appeared for Mr O'Brien and argued that the relevant legislation permitted costs to be paid not simply in defending proceedings brought under the legal profession legislation, but also extended to the cost of defending serious criminal charges. As at 19 December 2019 there apparently remained a shortfall in restitution of the principal amount which had been misappropriated of approximately $350,000. 13. Campbell J noted that of the $1.2 million advanced to the three children of the offenders, a little over $100,000 only had been repaid. His Honour expressed a view that those amounts which had been advanced to the children were probably "assets" within the description of some of his earlier orders but did not express a concluded view in that regard. His Honour noted that Mr O'Brien had described these advances as "loans" and that he had claimed that the "written loan agreements" purportedly evidencing the same had effectively been misplaced or lost during the sale of the former matrimonial home. 14. The Law Society opposed the extension of the allowable "legal expenses" to include the defence of criminal proceedings and submitted that the money advanced to the adult children could be looked to for money to pay for the defence of criminal proceedings. Campbell J referred to the "very unusually high degree of recovery for a case like this" and, notwithstanding the possibility that the burden of any ultimate shortfall would fall on the Fidelity fund, his Honour made a declaration that his previous order extended to costs incurred in defending the criminal proceedings. An order for costs with respect to the application was made in favour of the defendants (See Council of the Law Society of NSW v O'Brien [2019] NSWSC 1879). 15. I have set out the detail of these proceedings in the Supreme Court because both decisions, as well as the Statement of Claim for compensatory interest to the charities, were tendered on behalf of Mr O'Brien in the present sentence hearing. The fact that there is a substantial claim outstanding for interest in the vicinity of half a million dollars on the principal sums which had been misappropriated and that there is an ongoing dispute as to the assessment of costs in the Supreme Court proceedings, has been an issue between the parties on the sentence hearing regarding the extent of restitution and contrition to which I should have regard. 16. Material tendered in the course of the sentence hearing indicates that in May and June 2020 a further amount of slightly more than $250,000 was paid to the Law Society towards restitution of the principal sum misappropriated. In August 2020 a further and final repayment of $100,000 was made. That payment meant that the total of the principal amount of the misappropriated funds had been repaid in full. This last payment of $100,000 was said to have come from the second O'Brien son. Evidence was led that he had not paid back $300,000 of the money which he had received. I infer that the earlier amounts of approximately $350,000 in total (approximately $100,000 referred to by Campbell J and the $250,000 in June 2020) came from the other two children, although the clear suggestion in evidence from both Mr and Mrs O'Brien was that the other two children had repaid the amounts they have received in full. This does not accord with the observations of Campbell J. 17. Subsequent to the proceedings before Campbell J, and subsequent to the repayment of the full principal amount, it appears that Mr O'Brien has been representing himself in the ongoing negotiations with the Law Society regarding interest. An email exchange between Mr O'Brien and the solicitor for the Law Society was tendered in which, as recently as 18 November 2020, he acknowledged that he would be liable for interest under the relevant legislation "in an amount to be agreed or judicially determined." He undertook to "use my best endeavours to pay such amount." 18. The correspondence from the Law Society solicitor indicated that the obligation to pay interest related to the charities not having the use of the principal sums from the time that they should have received them. The amount of interest calculated by the Law Society to be due and payable as at November 2020 was in excess of $565,000. As at today's date, as far as the evidence before me is concerned, none of the interest claimed has yet been paid. 19. The fact that full restitution of the principal sum has been paid is a matter that operates favourably in respect of both offenders. Loss or damage sustained as a consequence of criminal conduct is a matter taken into account when assessing the severity of a crime and the recovery of the proceeds of a crime is a matter which, to some extent, operates in favour of an offender in lessening the loss or damage sustained as a consequence of their conduct. 20. I take the fact of restitution into account in favour of the offenders, although I note the circumstances where the majority of the misappropriated funds were still in existence by virtue of the acquisition of assets, and in some instances those assets had increased in value. 21. In R v Van Tung Luu (unreported, NSWCCA, 7 December 1984) an appeal was lodged against the severity of sentence by an offender where there had been recovery in full of the proceeds of his fraud. Mr Luu had used a large number of false identities in fraudulently obtaining approximately $62,000 in Commonwealth benefits to which he was not entitled. He had saved the full amount of the fraudulently obtained funds for the purpose, so he later said, of enabling him to purchase a home. It was, accordingly, recovered in full. The Chief Justice, Sir Lawrence Street said (at p.4): "In a sense, this can undoubtedly be weighed in his favour, as Mr Papayanni has pointed out. On the other hand, it also imports an element of the appellant having obtained this money, not for the purpose of alleviating any hardship that he may have been undergoing but purely for the purpose of accumulating savings." 1. A similar observation is apposite in the present matter, at least so far as the principal offender is concerned. 2. Mr Watson, counsel for Mr O'Brien, in his helpful written and oral submissions, has itemised relevant factors to be taken into account. In his submission the principal offender made admissions to Mr Maguire, to the Law Society and to the police. His level of cooperation and assistance was submitted to entitle him to a further discount, described as an "Ellis" discount (see R v Ellis (1986) 6 NSWLR 603 at [604]). In the circumstances of the disclosure and cooperation that I have outlined in detail, I am not of the view that any additional discount is appropriate. The plea of guilty was, of course, entered at the earliest available opportunity and will attract a 25% discount on an otherwise appropriate sentence. 3. I accept the expressions of remorse and contrition from both offenders. Whilst the principal offender would appear to have progressed to such a position somewhat hesitantly, not initially disclosing the full extent of the misappropriations, I am satisfied that he has ultimately come to a realisation of the enormity of his actions. The Court is unaware of the current position with regard to the outstanding claim for compensatory interest and the situation of unrecovered funds from the misappropriations which had been distributed to the O'Brien children. 4. Mr O'Brien described his motivation in committing the offences in his explanations to the psychiatrists, psychologists and to the Court, with what appeared to be a primary focus on the financial circumstances of his legal practice. He was perhaps somewhat more frank in his interview with police when he described the second and more substantial misappropriations as having been "to make provision for our retirement." He described to police the acquisition of a motor vehicle as well as funds being used for the purpose of travel. The motivation, in simple colloquial terms, was one of "greed", rather than "need". 5. Before turning to considerations with respect to Mrs O'Brien, I should note that the principal offender suffers from a number of medical conditions which I do not see the necessity of setting out in detail. These conditions, together with his age and the fact that in due course the sentence I will impose will lead to his first time in custody, will justify a finding of special circumstances. 6. With respect to Mrs O'Brien, I accept her expressions of deep remorse. Similarly to Mr O'Brien she gave sworn testimony in the sentence hearing and confirmed what she had told the clinical psychiatrist. Her ultimate pleas of guilty were preceded, even before she was charged, with an offer to assist the investigating police. Such offer was conveyed through her solicitors as early as March 2019. I am not of the view that any Ellis type discount is appropriate. However, I take into account that offer of assistance as a manifestation of her deep remorse and genuine contrition. 7. Mrs O'Brien gave significant evidence, which is corroborated in the professional reports, that she was the passive person in the relationship with her husband. He assumed the dominant role in the relationship. That dominant role manifested itself in a controlling fashion with respect to financial matters. To the extent of her having any input into jointly held assets – namely the superannuation fund and the property at Woodstock Street, she facilitated the full restitution of those assets towards the total amount of the misappropriation. 8. She similarly pleaded guilty at the first opportunity and is thereby entitled to a 25% discount. Some comparative cases 1. There is no doubt that so-called comparative cases need to be approached with some degree of caution. Every case turns upon its own individual circumstances and facts. Similar caution, of course, needs to be exercised when referring to the statistics maintained by the Judicial Commission. Past cases may, however, provide some guidance as to the approach taken in the application of principle to categories of offending. 2. It is necessary to bear in mind that some of the older authorities to which I will make reference were determined at a time when there were a number of different factors relevant to sentences which were imposed. Without being exhaustive, these include the fact that the numerical value of a sum of money as long ago as the 1980s will, of necessity, be more valuable than the equivalent numerical amount more than 30 years later. The maximum penalties, in some instances, were less and at that time there were automatic remissions in place which affected the actual time served. I bear that factor in mind when considering so-called comparative sentences. 3. In R v Eugene William Daley (1983) 8 A Crim R 433, the Court of Criminal Appeal dealt with an appeal against severity of sentence brought by a prominent Sydney solicitor who had misappropriated more than $700,000 from two of his clients over a period of eight months. The offences involved a number of separate transactions and resulted in five charges of fraudulent misappropriation and one charge of fraudulently omitting to account. Each of the offences carried a statutory maximum of seven years' penal servitude. 4. When the defalcations were about to be discovered, the offender went immediately to the Law Society and surrendered his Practising Certificate. He made full admissions and pleaded guilty to the charges preferred. A number of additional offences were placed on a Schedule. 5. On the first count, taking into account the scheduled matters, he was sentenced to the statutory maximum of seven years. On each of the other five charges he was similarly sentenced to concurrent terms of the maximum of seven years on each, to be served cumulatively on the first seven years. The ultimate sentence was an aggregate 14 years with a non-parole period of six years. 6. The Chief Justice, Sir Lawrence Street, described the appellant as, apart from the misappropriations, having led a life which could in every way be described as admirable. He had conducted a successful sole practice as a solicitor and had earned the regard of fellow practitioners of high eminence and other leading citizens. The case, in short, presented the pattern of a man of good professional repute, with an admirable domestic and personal life, having fallen into the criminality of extracting money that did not belong to him and using it for his own purposes, in that case to feed a gambling addiction. 7. The Chief Justice said, at [435]: "… that for a person in a position of trust, holding himself out as a responsible and honourable practitioner, to take monies in this way from the persons who had entrusted them to him attracts the gravest of disapprobation. The learned sentencing judge described the appellant's conduct as dishonourable in the extreme, and the consequent criminality is being high. I agree with this characterisation which his Honour put upon the appellant's conduct. For solicitors, accountants, or any persons in a position of trust, to betray that trust has traditionally been regarded by the courts as attracting grave disapprobation, accompanied by substantial sentences." 1. In the event, the Court held that the first sentence did warrant the maximum penalty permissible under the statute, namely 7 years. However the second group of offences warranted an additional 5 years rather than the cumulative 7 which had been imposed at first instance. Accordingly the Court of Criminal Appeal reduced the sentence to 12 years with a non-parole period of 4 and a half years. 2. A similar principled approach to the misappropriation of trust monies by a solicitor may be seen again in R v David Charles Hawkins (1989) 45 A Crim R 430. Hawkins had misappropriated a total of $2.6 million which was belonging to or accountable to clients. He had misappropriated a further amount of $4 million which was advanced by a finance company. The multiplicity of charges included some offences under the Commonwealth Crimes Act in relation to forging documents and defrauding Commonwealth and public authorities while others had been preferred under the New South Wales Crimes Act provisions relating to fraudulent misappropriation and obtaining money by deception. 3. Of significance, a sum of $1.2 million could not be accounted for. The money obtained from the frauds had been used in various property and commercial dealings which, had they been successful and absent discovery of the criminal conduct, would have placed the offender in a very healthy financial position. The judge at first instance, Judge Moore, said that the matter was as serious a case of fraud by a solicitor has had ever come before the Court. At first instance an effective aggregate sentence of 14 years imprisonment with a non-parole period of 6 years was imposed following a plea of guilty to all charges. 4. A Crown appeal against the inadequacy of sentence was successful. The Court of Criminal appeal increased the aggregate head sentence to 15 years imprisonment and imposed a non-parole period of 10 years. 5. With respect to the quantum of the fraud, Lee J said at [435]: "The amount of money involved in cases of premeditated planned deception and fraud are of necessity an important factor in the question of determining the degree of criminality, for they are an indication of the extent to which a prisoner is prepared to be dishonest and to flout the law and to advance whatever are his own purposes. The amounts of money also have a special relationship, in a case involving a solicitor, to the aspect of deterrence…" 1. His Honour Justice Lee also noted the remarks of White J in R v Hunter (1984) 36 SASR 101 at [108]: "all things being equal, like defalcations should be dealt with by like sentences and extremely more serious defalcations should be punished by much greater penalties." 2. The Court in Hawkins took the view that the fact that the offender was prepared to forge documents in order to implement his plans, together with the magnitude of the monies involved, "takes the case wholly out of the ordinary kind of case where for instance a solicitor has been guilty of a breach of trust towards his client in trust funds which frequently comes before the courts." Accordingly, the Court considered Hawkins to be "an exceptional case." 3. On the question of general deterrence, Lee J said at [436]: "In considering the adequacy of sentence, the aspect of deterring others in the legal profession and making clear to the public that the legal profession will not be protected in the courts against frauds of any kind, is of fundamental importance for the courts must recognise that solicitors are persons placed in a special position of trust by the law and the community. Their position is one which in the eyes of the community requires persons of the greatest integrity. Processes established by the courts and legislation seek to ensure that only persons of the highest integrity are permitted to practice. Members of the community put their trust in the honesty of solicitors, and it is because that is so that the profession of solicitor is a large one and one which provides high financial rewards. When that trust is abused by the commission of fraud in any form, not only does the client or person defrauded suffer but the integrity of the profession is necessarily called into question and the courts must impose sentences which are calculated to ensure that no solicitor will be left in doubt as to the serious consequences that will follow from such conduct." 1. Similar firm statements regarding defalcations by solicitors had been made previously. Lee J quoted the remarks of McClemens J in R v Cole (Unreported, NSWCCA, 10 May 1974) McClemens J said: "Defalcations by persons in a position of trust have to be regarded by the courts as much more serious than other types of defalcations. In this regard the solicitor stands in a particular position. He is an officer of this court, he is held out by it as a fit and proper person to practise his profession, to receive his client's money and to be the recipient of their justified financial trust and confidence. It is not possible for the courts to regard lightly the defaulting solicitor whose actions tend to undermine the security of ordinary people and the fabric of a profession on which and on whose integrity the public are to such an extent dependent. This is particularly the type of case in which the Court is entitled to express, on behalf of the community, its disapproval of the particular type of the breach of trust involved." 1. Justice Lee in Hawkins also noted the remarks of King CJ in R v Hunter (1984) 36 SASR 101 at [103]. The South Australian Chief Justice said: "The public must feel able to place money with solicitors with confidence and must be assured that breaches of trust by a solicitor will be punished severely as a deterrent to others." 1. In the same case White J said at [109]: "The public interest in stern deterrence prevails to a substantial degree over appeals to sympathy over human weakness, age, and factors personal to the offender." 1. As noted earlier, the Court of Criminal Appeal in Hawkins substantially increased the sentence to 15 years with a non-parole period of 10 years. Contrary to that outcome, there are numerous decisions with respect to fraudulent misappropriation of funds by solicitors which have given rise to a very wide range of outcomes. 2. In R v Jafari [2017] NSWCCA 152, Basten JA observed at [74]: "Multiplication of the instances in which theft by solicitors has been dealt with in different courts and in different circumstances will provide little assistance in establishing the principles to be applied. A statistical analysis may suggest that the severity of the language used by judges in such cases is rarely matched by the sentences imposed. However, it is the principles which must guide the sentencing judge in each individual case." 1. That case was a Crown appeal against the imposition of a sentence to be served by way of an Intensive Corrections Order. The Court imposed a term of actual imprisonment on the appeal. 2. In McLaren v R [2021] NSWCCA 12 the Court of Criminal Appeal recently dealt with a series of fraud offences whereby the offender had defrauded his victims of a total of $7.6 million. These frauds were committed pursuant to a series of what might be described generically as false pretences and false representations. They did not involve a solicitor in a position of trust. The learned sentencing judge at first instance had imposed an aggregate sentence of 16 years with a 12 year non-parole period. 3. The offender successfully appealed to the NSW Court of Criminal Appeal. The aggregate sentence was reduced to 12 years with a 9 year non-parole period. In the leading judgment of Hamill J, with whom Hoben CJ at CL and Rothman J agreed his Honour undertook a detailed analysis of numerous other cases involving serious fraudulent offending. I have read the cases to which his Honour has made specific reference and do not see the necessity of reproducing reference to all of them in these remarks. 4. It suffices to observe that one of the cases upon which Mr Watson relies on behalf of Mr O'Brien, namely R v Clarke [2019] NSWDC 2, was referred to by Hamill J. that case involved the solicitor from Atanaskovic Hartnell Lawyers who had taken money from the bank accounts of entities associated with Mr Bruce Gordon. Following a discount of 40% including assistance to authorities, an aggregate sentence of 6 years with a non-parole period of 3 years had been imposed. In that matter the offender's mental condition and his gambling addiction had moderated the weight to be given to general deterrence. 5. Hamill J also made reference to R v Dimitri De Angelis [2013] NSWDC 79. That matter involved an offender who had dealings with other citizens whereby he defrauded them through false and extravagant representations about his own standing. A total amount of over $8 million was defrauded. Following a 12.5% discount for a guilty plea the offender was sentenced to an aggregate term of 12 years imprisonment with a non-parole period of 7 years and 6 months. An appeal to the CCA was dismissed: De Angelis v R [2015] NSWCCA 197. 6. Various other cases referred to by Hamill J in his review of comparative cases included R v Burke [2002] NSWCCA 353. Burke had been an investment advisor and insurance broker. He had defrauded over $5 million from money entrusted to him to invest. A 20% discount had been allowed for his guilty plea. He was sentenced to an effective term of 10 years with a non-parole period of 7 years 6 months. An appeal to the Court of Criminal Appeal was dismissed. 7. Before leaving comparative cases I should also refer to the decision of his Honour Judge Haesler, on which Mr Watson has placed considerable reliance namely, R v Duncan [2019] NSWDC 852. Duncan was a solicitor who was 65 years of age at the time of sentence. He had misappropriated various amounts on more than 100 occasions from 20 deceased estates. The sum misappropriated was in excess of three quarters of a million dollars. 8. Subsequent misappropriation by Duncan of almost $1.4 million was described as "robbing Peter to pay Paul" in the sense of being misappropriations which were designed to reimburse the beneficiaries of other estate beneficiaries from which there has been previous misappropriations. 9. The sentence imposed in the District Court in that matter was 3 years 9 months with a non-parole period of 2 year. There had been a 25% discount following the plea of guilty. 10. Whilst noting that outcome, the circumstance and facts in that case are not of persuasive influence in determining an appropriate outcome in the present matter. 11. Before leaving comparative cases, it is appropriate to note that the preferring of charges relating to knowingly dealing with the proceeds of crime, carrying as they do a more substantial maximum penalty of 15 years, requires a level of careful consideration. 12. In Thorn v R [2009] NSWCCA 294, the Court of Criminal Appeal raised concerns regarding the use of charges of dealing with the proceeds of crime following actual fraudulent conduct. Howie J said at [27]: "This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. But in the present case, according to the maximum penalties prescribed, the money laundering offence was more serious than the frauds by which the money was obtained." 1. A similar criticism of such charging was again made by the Court of Criminal Appeal in Nahlous v R [2010] NSWCCA 58; 201 A Crim R 150. 2. In the present matter, I make no overt criticism of the decision to charge the additional offences with respect to the disposition of the misappropriated funds. However, notwithstanding the more substantial maximum penalty, the principle of totality will need to be given careful consideration for the reasons discussed in Nahlous (see [17]). Particularly with respect to Mr O'Brien, I will in due course proceed to deal with the present matters by way of an aggregate sentence. I should make clear that I consider the spending of the misappropriated funds by the principal offender requires very substantial concurrence with the actual misappropriation of the funds. Specific factors relevant to the offending of Mrs Therese O'Brien 1. As pointed out in the helpful written submissions of Mr Davidson of counsel who appears on behalf of the offender, in contrast to her co-offender, Therese O'Brien neither planned nor executed the misappropriation of funds. The evidence, which I accept, is that when she first became aware that her husband had misappropriated funds in 2015 she initially told him, in forceful terms, to give the money back. His refusal placed her in a moral conundrum whereby she thereafter acquiesced in the actions which he subsequently took. 2. I have already indicated that I accept that Mrs O'Brien played a passive role in their longstanding marriage. Financial responsibilities and decisions would appear to have essentially been under the control of the principal offender, Mr O'Brien. 3. Society has moved a long way from the situation in which the common law recognised what used to be described as "marital coercion". Such concepts, which made their way in due course into NSW statute law, were abolished decades ago as an anachronism. 4. However, the position in which Mrs O'Brien found herself in 2015, whilst not absolving her from criminal complicity, plays a relevant part in an understanding of the situation in which her husband's actions had placed her. 5. In the course of discussion during the sentence hearing, I expressed a view that her silence and inaction in failing to report her husband might be construed, in effect, as a misprision of felony. I observe that she was initially charged, amongst other offences with the statutory equivalent of this offence. 6. As I have remarked earlier, her criminality in respect of knowingly dealing with the proceeds of crime is caught within a definition that includes concealing and engaging, directly or indirectly, in a transaction. The two relevant transactions were the deposit of the funds in 2015 into the self-managed superannuation fund that Mr O'Brien had set up and secondly engaging in the transactions including the acquisition of the home in Woodstock Street and the subsequence expenditure of various sums of money for furniture and furnishings. With respect to her actual actions in the expenditure of the $53,000 which was the subject of a separate count against Mr O'Brien and which has been rolled into the second count against her, the purchases which she is specifically identified as making would appear to relate to an amount approximately either $6,000 or $8,000. 7. With the exception of her active role in this comparatively modest expenditure, on all of the evidence she was otherwise subservient to decisions made and put into effect by her husband. Determination with regard to Mr O'Brien 1. As I have already indicated, I propose to deal with the principal offender by way of an aggregate sentence. I am required to identify the indicative sentences which would otherwise have been imposed for the individual offences. I should make it clear that the allowance for a 25% discount applies to both the indicative sentences and also to the ultimate aggregate sentence. I will refer to each of the offences in summary form by reference to the amount involved I will also advert to the source and disposition of the funds. Count Offence Indicative sentence 1 Dishonestly obtain $200,000.00 (St Vincent de Paul and South-Eastern District Health Service (Prince of Wales) 3 years 2 Dishonestly obtain $1,390,912.10 (Paraquad and RANZCO Eye Foundation) 6 years 3 Deal with proceeds $220,787.35 (Mortgages on North Bondi) 3 years 4 Deal with proceeds $1,000,000.00 (self-managed superannuation fund) 6 years 5 Dishonestly obtain $100,000.00 (Taking into account Form 1 dishonestly obtain $5,000) (Delaney Power of Attorney) 3 years 6 Dishonestly obtain $50,000.00 (Delaney Power of Attorney) 2 years 4 months 7 Dishonestly obtain $1,773,486.23 (Aged-care refundable deposit) 6 years 8 Dishonestly obtain $2,740,288.12 (St Vincent de Paul) 6 years 3 months 9 Deal with proceeds $3,608,760.00 (purchase at Woodstock Street) 6 years 3 months 10 Deal with proceeds $53,499.00 (furniture and furnishings expenditure) 12 months 1. You are convicted, I sentence you to a minimum term of 6 years and an additional term of 4 years. That is a head sentence of 10 years and non-parole period of 6 years. This sentence will commence on today's date, 16 March 2021. Accordingly, the non-parole period will expire on 15 March 2027 and the additional term will expire on 15 March 2031. Determination with regard to Mrs Therese O'Brien 1. With respect to Mrs Therese O'Brien, I find that the section 5 threshold has been crossed. I propose to proceed by way of an aggregate sentence. 2. I record the following indicative sentences: Count Offence Indicative 1 Deal with proceeds - $1,000,000.00 (Superannuation fund) 1 year 9 months 2 Deal with proceeds - $3,662,259.00 (Woodstock property) 2 years 4 months 1. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 3 years. 2. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an intensive correction order. The sentence will commence on today's date, 16 March 2021. 3. You must report to the Community Corrections Office at the City office as soon as practicable but no later than 7 days from today's date. 4. The standard conditions of the order apply: 1. You must not commit any offence; and 2. You must submit to supervision by a community corrections officer. 1. The following additional condition applies: 1. A community service work condition requiring the performance of community service work for 500 hours. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2021