Morgan, R. v

In sentencing a solicitor for sustained theft from a firm and its clients, the appropriate sentencing level may be assessed by comparison with large-scale confidence fraud. Prompt and complete repayment can constitute substantial mitigation, particularly where it protects a firm’s ability to continue trading. It does not necessarily make a severe sentence manifestly excessive where the offending was persistent, involved very large sums and represented a grave abuse of professional trust.

The appellant, a 50-year-old senior partner in a respected solicitors’ firm, appealed against a sentence of seven years’ imprisonment. Between 2002 and 2004 he took about £1.36 million from the firm and its clients, including a client-account shortfall of £676,000. The money funded an extravagant lifestyle.

He contended that his wife initiated the arrangements and that his conduct after discovery substantially mitigated sentence. He sold the house bought with the proceeds, enabling the client account to be restored within three weeks, and all money was repaid. The central issue was whether the sentencing judge had given sufficient weight to that mitigation so that the seven-year sentence was manifestly excessive.

1. Appeal dismissed. The sentence of seven years’ imprisonment was severe but was not manifestly excessive.

2. The offending was properly comparable in sentencing terms to large-scale advance-fee or other confidence fraud. Although it did not fall directly within the definitive guideline for statutory fraud offences, a starting point of six years’ custody, with a range of five to eight years, was appropriate.

3. The seriousness derived not only from the substantial sums and the persistence of the thefts over a lengthy period, but also from the appellant’s professional position. A solicitor bears primary responsibility for ensuring propriety in relation to the firm’s money and client funds. The appellant’s wife may have initiated the arrangements, but that provided only limited mitigation in light of his professional responsibilities.

4. The appellant’s conduct after discovery was substantial mitigation. His prompt sale of the house allowed the £676,000 client-account shortfall to be made good within three weeks. Complete repayment enabled the firm to continue operating and reduced the practical consequences for its employees and partners.

5. The sentencing judge ought expressly to have referred to the repayment. However, the Court was satisfied that the judge could not have been unaware of it when fixing sentence. Even giving full weight to that mitigation, the persistent abuse of trust, the amounts involved and the appellant’s profession justified the sentence imposed.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed: [2011] EWCA Crim 3166.

• Sentencing court: The appellant was sentenced to seven years’ imprisonment. The court and citation are not stated in the judgment.