Solicitor jailed for two years

Press, 6 September 1980, Page 4

Solicitor jailed for two years

A former lawyer, who..had been a young .man of great promise and had been’ head prefect of his .school,’had. abused the trust placed in him as a professional man by the community. Mr Justice Jeffries said in the High Court yesterday.

His Honour sentenced Robert Frederick Arthur Powell, aged 39, a former lawyer, to two years' imprisonment on 11 charges of theft by misappropriation involving $62,800. He was (found guilty by a jury on the charges. Powell has lodged an appeal against the sentence and has been released on bail.

Originally Powell pleaded not guilty to 14 charges of theft of $76,800. But three of the counts involving $14,000, were dismissed by his Honour after the close of the Crown case.

Evidence was given at the trial that Powell had committed the offences in the operation of his trust account by using money, which had been paid in by clients, for purposes which had not been authorised. Messrs C. B. Atkinson and K. G: Hales appeared for- the Crown, and Messrs B. McClelland, Q.C., and K. M. MacDonald for Powell. Mr McClelland said that he was fully aware that almost invariably a solicitor

convicted of the theft of clients’ funds was sent-' to prison; but he submitted that an: Powell’s case a lesser sentence could be imposed because it was not the usual type of theft. ' The offences had been committed by Powell making unauthorised advances bn mortgages. Not one penny went into his own pocket. The money was moved sideways.

After having an outstanding record at school and being head prefect Pow? ell was a young man of great promise. He qualified and built up a busy practice after starting out on his own.

But as so, many other young lawyers in ''similar circumstances he found that most of his clients were bun rowers and not lenders of money. He did not have access to substantial amounts of mortgage .finance and had to approach outside lending institutions for funds. . He became overworked and had to spent many hours at night and ' on the week-ends on the job. His affairs became muddled as he tried to cater for clients who were pestering him for money. . Many of them wanted 100 per cent finance of building purchases in the hope of getting a quick turnover and profit. That \Vas

all-right while the property market was- booming but it did not last?- ’ -

. All the . transactions made by Powell were. .recorded in his--books except during the last few months when 7his bookwork got behind. Money had to be found quickly on a short-term' basis in the hope that the properties would ,be sold quickly, the loan repaid and. the profit taken.

Powell had made no atr tempt at concealment. The vast majority of the loans he raised for -clients had been repaid but the final outcome of some was not known, yet;- -’.I; ? . .Unfortunately, Powell got involved on a personal basis with- ’clients and some of them took advantage of him to get service to which they were-not entitled by pressuring himfor short-term loans, .Mr McClelland said...

On July 6, 1979, Powell was arrested- after earlier being suspended by the Law Society in May. Since then he ’ had not worked. Disc,i p 1 i n a r y proceedings brought aeainst hi'm by the Law Society had been adjourned Until the outcome of the trial. I '-I-' ’ Since May. 1979, Powell’s books and records had beer subjected -to a detailed examination by the: police,; the Law Society .- and ; thej auditor. Jle had been . Under

a tremendous strain and his]. ; trial, had been adjourned on; two; .Occasions because tfie] Crown wanted to, introduce: ( new evidenced - - . It appeared likely Powell! would never'be ablfe; to prac-t tise his profession again,[ which waSTa severe penally' in itself. . •[ Quoting from the probation officer’s report Mr. McClelland said: "In his description. of his working style Powell presents a. picture of a man who was unwilling to refuse service to. anyone even when he carried an almost intolerable burden of work. ~ ~ . .. . . *‘ln particular .his«personal qualities of. ’generosity and desire to -help seem -to have intruded into his pro.fes-T siqnal life, leading to- a per- ] haps unrealistic feeling, of responsibility ifor his' clients’ i difficulties of whatever type.' “Because of the quantity of work coming to him he employed a solicitor to work ' for him but his previous difficulties in partnership i made him unwilling to take ; that step in his own 'firm. Consequently the bulk of the work fell to him and with 1 his level of involvement in it, this seems to havei contributed significantly to the 1 commission of the present offences,” * 'I .'The probation report .had' referred to Powell’s fiercely', independent attitude. He had been too proud to call fpr i help when he needed it but preferred to battle on. Had. I tje accepted help and guid-l

■ ance from his fellow practitioners he would, not no« ; be facing conviction and dis- ™ 7I At the age of 39 his ’career as-a lawyer was over, ilt resulted from ‘-being (unable type I of practice he; was running [ rather than deliberate • dishonesty that he ; was in this predicament. He acknow ledaed‘now that he was a muddler and incompetent, but he had not been dishonest in the normal sense o! the word. . : , - Mr McClelland urged his Honour to take the unusual step of not sentencing Powell to imprisonment but to impose a long term of periodic detention as had been recommended by the probation officer.. “Powell, I imagine there is little I can say or add.” his Honour said, “to what you must have already told yourself. You have had many advantages in your nature and your upbringing. -You have intelligence, good health and a stable background.” As counsel had said Powell had had a highly successful career as a -schoolboy; which augured will for. his future. After qualifying ' in law he had practised ■ his profession in Christchurch for many years.'AJ 7 A. ■; “Notwithstanding : those' many advantages, you chose some years ago to embark upon a series of thefts by misappropriation,” said his Honour. Powell had defended those

- charges in a trial lasting four days. He had ably defended but, fteyeri theless, the jury returned [verdicts of guilty on etfch of the charges which had; been left to them. I i “Fortunately, most of the : people from whom you .’took i the money[ should have it refunded by the Solicitors’. Fidelity Fund. Whether in. the lend there is an over-all deficit. I do not know,”?, his Honour said. Tfie probation officer’s report was very favourable to Powe! 1 and that would be taken into account.- But- the fact remained that Powell was a professional man in whom the community placed trust and the custody of their money. I “The community has a I right to expect from persons 1 such as yourself, the highest standards of honesty and integrity and tragically you [have failed in that regard. After considering Mr i McClelland’s submissions, the probation officer’s report including the recommendation made in it and the references % which have been placed before the Court, I have reached the conclusion that in <the public interest, a sentence ..of imprisonment cannot be avoided. I make it the least.l. can in the circuips.ta.nces. “You are sentenced to twh years imprisonment on each or the charges, to be serv-A concurrently,” said his Honour. ,