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The Queen v Watt [2006] NZCA 293 (17 October 2006)

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The Queen v Watt [2006] NZCA 293 (17 October 2006)

Last Updated: 14 November 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA131/06

THE QUEEN

v

DAVID JAMES THOMAS WATT

Hearing: 6 September 2006

Court: Glazebrook, Ellen France and Ronald Young JJ

Counsel: P Gorringe for Appellant
M R Heron and A M McClintock for Crown

Judgment: 17 October 2006 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No.

Introduction [1]
Issues [5]
Factual background [7]
The appeal [34]
Finding that the appellant acted dishonestly [35]
Finding that prospect of negligence claim was an artifice [63]
Other matters [72]
Sentence [86]
Result [91]

Introduction

[1] The appellant was convicted after a trial before a Judge alone of one charge of criminal breach of trust.
[2] The conviction arose from the appellant’s actions as trustee and executor of the estate of Mr Leonard Hoare. Essentially, the appellant billed the estate and paid himself out of estate funds in circumstances where the Judge found he knew he was not entitled to be paid.
[3] The appellant was sentenced on 12 April 2006 by the trial Judge, Judge Roderick Joyce QC, to a term of 15 months imprisonment. Leave to apply for home detention was granted but the Judge declined to defer the start date of the sentence. A sum of $60,000 was to be paid by the appellant to the current trustee of the estate.
[4] The appellant appeals against his conviction. He also argues that, if the Court considers his culpability is less than that identified by Judge Joyce QC, there should be a commensurate reduction in sentence.

Issues

[5] The appellant’s case is essentially that the verdict is unreasonable or cannot be supported having regard to the evidence. It is said that the Judge failed to consider relevant evidence or mistook its meaning or did not give proper effect to it. Further, as the appellant gave and called evidence, in a number of situations there were two reasonable inferences available but the Judge favoured the Crown.
[6] There is no challenge to the law applied by Judge Joyce QC. The issue then, applying the test in R v Ramage [1985] 1 NZLR 392 (CA), is whether this Court is of the opinion that a Judge, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused.

Factual background

[7] The factual background is quite complicated and is discussed in detail in the Judge’s reasons for verdict. The essential features are as follows.
[8] At the relevant times, the appellant was in legal practice on his own account.
[9] In June 1994, Mr Leonard Hoare died. He left a will that he had made on 4 February 1988. The appellant, at that time a partner in a law firm, was the solicitor instructed to draft the will although he in fact instructed another solicitor in another firm to do the drafting.
[10] Mr Hoare’s widow, Valda Hoare, was appointed executrix under the will. The appellant was the executor and sole trustee of the estate. Mr Hoare was survived by his five sons. The sole asset of the estate was the Piha home occupied by Mrs Hoare. She was the deceased’s second wife and was not the mother of any of his children.
[11] Under the will, the Piha property was given to the appellant on trust to allow Mrs Hoare to occupy it during her lifetime. The appellant, as trustee, was empowered to sell the home and buy another. The will also dealt with the surplus of any sale.
[12] The remainder of the estate was given to the appellant upon trust to pay funeral expenses and other debts with the balance held on trust for Mr Hoare’s children. There was a fairly standard charging clause in the will enabling the recovery of costs by the executor or trustee incurred in relation to the administration of the estate.
[13] After obtaining probate and transmission of the title to the Piha home, the appellant sent an invoice to Mrs Hoare for $5,804.75 for his costs. Mrs Hoare complained to the Auckland District Law Society about the bill although, after the appellant gave her details about his calculations, she ultimately paid the bill and the costs revision did not proceed.
[14] The next development was Mrs Hoare’s decision in mid-July 1997 to sell the Piha house and buy another place in Picton. After receiving this request, the appellant took advice from another solicitor, Mr Gulley. Mr Gulley’s advice was to feature in what followed.
[15] Mr Hoare’s sons were not in favour of a sale of the Piha property. On 23 July 1997, two of them wrote to the appellant seeking a copy of the trust deed and the annual accounts. The letter said "We do not believe that you have carried out your obligations and duties fully, thus we would appreciate your full co-operation in haste."
[16] There was then some correspondence with Mrs Hoare and the appellant had a discussion with one of the sons.
[17] The next step was a letter of September 1997 to the appellant from a Mr Kennedy, a lawyer who had been instructed by some of the sons. Mr Kennedy was critical of the drafting of the will and sought advice about the assets of the estate and accounts rendered. The appellant ultimately replied to that letter in mid-October.
[18] On 17 November 1997, the appellant completed a bill for $11,500 plus GST covering the period from July to October 1997. A further bill of $4,950 plus GST was rendered for work over November 1997.
[19] The Piha property was sold with settlement in January 1998. In the course of the sale process, Mr Watt again took advice from Mr Gulley. The sale price was $347,500. The property was mortgage free. A home in Picton was purchased for Mrs Hoare later in 1998. That property cost $212,000 and the balance of the funds were lodged by the appellant with the ASB, although the direction in the will was to use the BNZ.
[20] Mr Kennedy had, in the meantime, in January 1998 written briefly reiterating his earlier views and seeking the appellant’s comments. Having taken advice from Mr Gulley, the appellant wrote to Mr Kennedy on 10 February 1998 rejecting Mr Kennedy’s argument. Mr Gulley rendered an account for his attendances as at mid-February and Mr Watt paid that from the Piha sale proceeds.
[21] On 11 March 1998, the appellant rendered another account, this time for $8,150 plus GST. Like others before the available funds were exhausted, it was paid from the surplus on the Piha sale. There was a further bill at the end of March for $4,375.00 plus GST. Other bills followed.
[22] The sons, through Mr Kennedy, requested the Law Society to conduct a costs review. The result of the review, which took place in December 1998, was that the invoices which by that point totalled $43,050 were reduced to $34,750.
[23] Over 1998, 1999 and 2000, there was correspondence between the appellant and Mr Piggin, another solicitor from whom the appellant took advice over the will, its meaning and other matters. Accounts were also incurred with Mr Piggin.
[24] By December 1998, the estate no longer had any surplus funds. The funds had been spent principally in legal costs for the appellant, some for Messrs Piggin and Gulley and some other estate outgoings.
[25] In February 1999, Mrs Hoare swore an affidavit prepared by the appellant with the assistance of Mr Piggin. The appellant said this was in anticipation of legal proceedings against the estate.
[26] There was a further bill of $10,175 exclusive of GST for June 1998; another in August 1998 for $4,625 exclusive of GST; and accounts in October for $4,425 and $2,000. A bill (number 960) for $11,800 plus GST was rendered in December 1998.
[27] A complaint was lodged by Mr Kennedy on behalf of the sons in October 1999 with the Auckland District Law Society. The Society decided to take no action on the matter, advising that civil proceedings were the most appropriate course.
[28] The next step was Mrs Hoare’s decision, in April 2000, to move from Picton to Hamilton necessitating the sale of the Picton house. The Picton sale took some time.
[29] As there were no funds left in the estate, in late 2000, the appellant arranged for a mortgage to be registered against the Picton property. He then drew down funds in December 2000 and paid outstanding invoices, $25,000 of which was for his bills. Further funds ($11,175.01) were drawn down in February for a bill for the September to December 2000 period.
[30] It was not until March 2001 that the appellant told Mrs Hoare that there were no remaining funds and there was a mortgage liability. Mrs Hoare then took advice from Gascoigne Wicks and correspondence between that firm and the appellant followed.
[31] Mr Watt resigned as trustee in June 2001.
[32] Gascoigne Wicks complained to the Law Society about the appellant and the Law Society’s inspector undertook an inspection in March. At the suggestion of the inspector, the appellant sought a revision of his costs which was undertaken in 2004. Fees of $71,550 were reduced to $54,465.
[33] Following a complaint to Police by one of the sons in April 2001, the appellant was charged in May 2004.

The appeal

[34] The primary focus of the appeal is on two findings of Judge Joyce QC. First, the finding that the appellant knew he was not entitled to pay himself as solicitor and so acted dishonestly. Secondly, the finding that the risk of a claim by the sons against the estate was an artifice created by the appellant.

Finding that the appellant acted dishonestly

[35] The appellant’s challenge under this head is to Judge Joyce QC’s finding at [246] that by the end of November 2000, Mr Watt:
 knew and in fact had always known that cost revisions .. had to be his own to bear;
 knew that in that respect the advice of Messrs Gulley and Piggin had ultimately, and effectively enough, coincided;
 knew that advice was consistent with the instruction of the Law Society on the topic; and
 when giving evidence he did not in any kind of even possibly persuasive way identify any good reason to ignore what he had learned and been told.
[36] Accordingly, the Judge concluded that there was no place for any "rational" conclusion except to find that Mr Watt, as at 22 December 2000, "consciously and knowledgeably" made sure he was paid for the time he had spent or which he had recorded as spent in dealing with the 1998 costs revision. In doing so, the Judge concluded he acted dishonestly. We note here that the Judge did not find the appellant culpable in respect of payment of the accounts of Messrs Gulley and Piggin.
[37] The focus as the argument developed on this point is on invoice number 960. Invoice number 960 was for $11,250 plus GST making a total of $12,656.25. This bill was paid in part (some $5,239.44) on the day it was rendered, that is, on 17 December 1998. It covered the period of November 1998, namely, the month before the costs revision hearing on 10 December 1998.
[38] As we have noted, in late 2000, the appellant arranged an Orbit loan, to the value of $60,000 secured against the estate’s Picton property in which Mrs Hoare was living. The appellant drew down $40,000 from that loan on 22 December 2000 and paid himself approximately $25,000 including payment of bill number 960 in full. In fact, that was an overpayment because the bill was already part paid but it is accepted that that was a mistake and not fraudulent. The important date is then the 22 December 2000.
[39] On appeal, the appellant says that some of the work giving rise to invoice number 960 related to the negligence claim the appellant believed the sons were planning to bring against him. He believed he was entitled to charge for that work. It is further submitted that it was not open to the Judge to say that the appellant had not simply overlooked, at the time of payment in December 2000, the need to make some distinction between costs revision and negligence matters. The appellant says he was not conscious of the content of his account.
[40] The appellant acknowledged at trial that he could not charge for costs revision matters. The expert evidence on behalf of both the appellant and the respondent supported that. Further, as the Judge noted, the appellant did not charge the estate for the costs revision Mrs Hoare said she was going to bring in relation to the first bill. The appellant accepts that a part of invoice number 960 was a charge for costs revision matters. He also accepts he knew he could not charge for that but his argument now is that it is not clear on the evidence what the split was as between costs revision and other matters.
[41] Given that the appellant accepts that part of the bill was for matters for which he could not charge the estate and that he knew he could not charge, there was a basis for the Judge to find that in paying himself in this way he did so dishonestly. That must be so unless the Judge had to accept the explanation that the appellant in December simply overlooked making an adjustment to the bill. Subject to that argument, to which we return, at most, the appellant’s case now is relevant only to the extent of his culpability and therefore to sentence. It is apparent, in any event, from a consideration of the Judge’s reasoning leading up to the conclusions which are challenged, that it was plainly open to the Judge to find as he did. On that basis, there is no ground for a challenge to the conviction or to the Judge’s assessment of culpability.
[42] The first step in the Judge’s reasoning was his acceptance that the bill was substantially about costs revision: "Principally", the Judge said, involving "numerous backs and forths" between the appellant and Mr Piggin.
[43] This finding reflected the Crown case which was that bill number 960 was almost entirely costs revision related and that by the time the appellant paid the bill on 22 December 2000 he knew that and knew he could not pay it. The split between costs revision and other matters was not a particular focus at trial. The focus was rather more on whether the Judge was properly able to conclude that the appellant did not honestly believe that the costs revision was about negligence matters for which he could charge.
[44] There was evidence to support the Judge’s conclusion that the bill was substantially about costs revision matters. That is apparent on the face of the bill, and is supported by the decision of the costs reviser. In the November 2004 costs revision decision, the reviewer said that some 418 of the 472 recorded units were spent on drafting briefs and conferring with Mr Piggin. Further, as the Judge said, the 472 units covered by the bill purported to relate to some 48 hours work. But, the Judge said, on an examination of the exhibits and the evidence there was "nothing like matching substance". The Judge made the point that all that was happening in the estate itself at that time was that Mrs Hoare was now settled in the Picton house.
[45] Further, as the Judge found, Mr Piggin’s evidence was that his involvement in respect of the December 1998 costs revision was to defend the bill of costs. The Judge at [232] concluded:

That is exactly what he told the Court and I have no doubt that it is exactly what Mr Watt must actually have understood (no matter the obfuscations in which he then indulged) back in the year 2000.

[46] The Judge also relied in this respect on the appellant’s statement to the Police where the appellant had explained that the reviser had told Mr Kennedy that the costs revision was not the place to have a lot of questions and answers about the negligence issue. The reviser, Mr Watt said, told Mr Kennedy he would have to confine himself to matters relating to costs revision.
[47] Accordingly, it was appropriate for the Judge to proceed on the basis that invoice number 960 was almost substantially about the costs revision.
[48] The second step in the Judge’s reasoning is his rejection of the appellant’s claim that the "dimming of memory" had removed "consciousness of content". The Judge said he was unable to accept this because, in part, the evidence suggested that the appellant was not one to overlook matters. The Judge also relied in this respect on the evidence of the appellant’s former partners as to his meticulous attention to detail and, as well, on the detail in his own billing narratives.
[49] The Judge also emphasised the early focus by the appellant on who would pay these costs. For example, as early as 26 June 1998, the appellant had written to Mr Piggin to say that he was "minded" that his costs for counsel at any revision plus the costs of calling Mr Gulley as an expert witness should be paid by the estate. Later, on 29 October 1998, he asked Mr Piggin whether his (Mr Piggin’s) costs and the appellant’s own costs associated with the revision were payable by the estate. Mr Piggin did not respond to that, because, as Mr Piggin told the Court, Mr Watt later said Mr Gulley was advising him on that issue. It was, in these circumstances, a rational conclusion to find that the appellant would not simply have just overlooked the content of the bill.
[50] A third step in the Judge’s reasoning focuses on the advice given to the appellant by Messrs Piggin and Gulley as to what matters were properly charged to the estate.
[51] In a file note of 27 July 2000 recording a discussion with Mr Gulley, Mr Watt recorded:

When a trustee has had negligence alleged against him/her and the trustees are allowed to have all their costs paid. If a trustee were to be found guilty of negligence, then they could not have their costs paid. There is a very similar situation here in relation to David Watt.

[52] The file note went on to record Mr Watt’s view that at the costs revision Mr Kennedy was fixated upon the idea that the will was prepared negligently and that Mr Watt had been a bad trustee. The appellant recorded that this had all been shown to be untrue and "therefore" Mr Gulley "thinks that my bill should be paid, although it is possible that some percentage of it which is not to be properly payable by the estate." He said that Mr Gulley was going to consider this and let him know.
[53] The Judge saw this as an overstatement of Mr Gulley’s position "decidedly advantageous" to the appellant.
[54] There was then a letter from Mr Watt to Mr Gulley asking about the amount or percentage of appropriate reimbursement for the estate once the house was sold. As the Judge observed, at about this point, Mr Gulley seemed to have the idea that where matters were not properly to be raised at a costs revision and intruded on that costs revision, they could conceivably be charged for. Subsequently, on 2 August 2000, Mr Gulley provided a much firmer statement about what Mr Watt could or could not do. Mr Gulley advised the appellant, in light of a recent experience he had had with the Auckland District Law Society, that a practitioner could not charge for work involved in "collating information and data which the Society requires after it has received a request for costs revision, for preparation for a costs revision hearing, or for attending at a costs revision hearing."
[55] As the Judge said, the appellant’s focus appears to have been on the latter part of the advice from Mr Gulley which was that in the absence of a successful proceeding establishing negligence, he was entitled to charge for all of his time dealing with issues other than those relating to the costs revision process. Mr Gulley continued:

As the allegations of "incompetence and sloppiness" in drafting of the Will should not have been canvassed in the Cost Revision hearing, we think that you can charge for your time in dealing with those aspects, ..We think that [Mr Piggin’s] costs should be analysed and paid on the same basis, ie his costs in relation to the cost revision itself, and the complaints by the residuary beneficiaries which were properly germane to it, should be paid by you, but amounts charged for otherwise advising you as trustee, and assisting you to respond to the "attack" made by the residuary beneficiaries and their solicitors which were not, or should not have been part of the cost revision, are properly payable from the estate.

[56] It is at this point that the Judge finds that in what he did the appellant created an "artifice" to enable himself to be paid for everything and, if questioned, fall back on the advice he had from Mr Gulley.
[57] Leaving that finding to one side at the present, the next item of correspondence that should be referred to is Mr Watt’s fax to Mr Piggin of 28 September 2000 where he suggested that his purpose for instructing Mr Piggin to attend on the revision was "primarily" to protect himself as a trustee in relation to the allegations as to negligence. In the last paragraph, the appellant wrote that it sounded as though Mr Gulley and Mr Piggin may not be in agreement and he sought Mr Piggin’s opinion as to what a prudent trustee should do concerning counsel’s bills and his own bills of cost.
[58] Mr Gulley’s letter of 12 October 2000 to Mr Watt did caution against "carte blanche" charging against the estate although reiterating the advice as to the ability to charge for negligence matters.
[59] On 22 November 2000 Mr Piggin responded to Mr Watt and in his covering letter made it plain that Mr Watt’s attendances in responding to Mr Kennedy’s allegation as to the drawing of the will and the related complaint to the Law Society were not chargeable to the estate.
[60] The appellant said he did not get this letter. The Judge saw that position as "all together too convenient" given the otherwise distinctly complete set of files. In any event, the Judge pointed to evidence that there was other material on the file making it plain that Mr Watt must have known that the proper position was as Mr Piggin’s note put it. An example of this was Mr Watt’s fax to Mr Piggin of 6 November 2000 where he noted Mr Gulley’s advice that he should not charge at the present time for anything related to negligence allegations against him. The appellant said that Mr Piggin did not have to reply to that letter because he would just delete the matters in question from the bill of costs and issue it.
[61] On this, Mr Piggin’s evidence was that the 6 November 2000 fax followed on from a conversation he had with Mr Watt from which he clearly understood that all negligence attendances were to be taken out.
[62] It is plain then that there was a proper evidential basis for the Judge’s conclusion on this matter. There is nothing that can be said to have led to an unreasonable or irrational finding.

Finding that prospect of negligence claim was an artifice

[63] This is a challenge to the finding already referred to by Judge Joyce QC that the possibility of a negligence claim was an artifice which Mr Watt had created. The Judge took the view that there was never any action or even a threat and little if anything more than a "somewhat sustained query" about the treatment of the interest of the surplus on the Piha property and a related complaint about the will’s lack of clarity on that and other accounts. The Judge’s finding at [267] on this matter is summarised as follows:

The Crown was right when it contended that this whole negligence action issue was also one substantially created by Mr Watt himself. Whatever the size it assumed in his mind, the reality was that from time to time he was simply being somewhat tried, or rather unreasonably tested, by a perhaps difficult fellow practitioner.

[64] In challenging this finding, the appellant refers to the evidence that Mr Watt considered he was under threat and to the objective indications that the threat was real. For example, Mr Hoare’s sons had instructed Mr Kennedy who did write in a critical way on a number of occasions to Mr Watt. The appellant also points out that there was a complaint to the Police in the early stage of 1998. There was a costs revision and the reviewer at the revision referred to signs of "some unpleasantness or aggravation" between the sons and the appellant. The evidence also showed the sons had considered civil proceedings which were not pursued because they would have been too expensive. In addition, there was the complaint to the Law Society and, ultimately, the appellant was sued by Mrs Hoare in 2001.
[65] We agree with the respondent that these are matters which were raised at trial and were dismissed by the Judge. A consideration of the Judge’s reasoning shows there is an evidential basis for the finding. Accordingly, while we accept there were some indications to support the view the threat was not completely unreal the Judge’s findings were open to him. In any event, on our analysis, this aspect is not central as it was open to the Judge to conclude that the appellant knew he could not charge for costs revision matters and in doing so acted dishonestly.
[66] The Judge in rejecting this claim accepted that Mr Watt had been warned by Mr Hoare to "expect trouble" from the sons. The Judge accepted also that exercising itself in the appellant’s mind was the notion of some animus on the sons’ part towards Mrs Hoare. The Judge said that having heard the evidence of several of the sons, his impression - which he described as "crystal clear" - was that the sons were generally very well disposed to Mrs Hoare and had always been. The Judge was conscious, he said, that the sons and Mrs Hoare might now prove to be acting in a common cause. The Judge also said that he had taken into account an earlier notion that the sons might be "intent on some kind of vendetta." Despite having those cautions in mind, the Judge concluded that none of the sons gave any indication that for the purpose of the trial he was suppressing or denying any actual earlier animus towards Mrs Hoare.
[67] The Judge also relied on Mr Watt’s statement to the Police. In that statement Mr Watt acknowledged that Mr Kennedy had never written saying "we are going to sue you for negligence". Rather, he relied on the tone of his letters and the letter Mr Kennedy sent to the Law Society. Against that, the Judge pointed out that little at all over the relevant timeframe was actually heard from Mr Kennedy. We add that Mr Gorringe explained that the negligence alleged in relation to the estate related to selling the Piha property without having another property lined up to purchase in its place. That is hardly a basis for the activity and costs said to flow from this concern.
[68] The Judge had real difficulty in seeing how even the appellant could have been as truly worried about the will drafting as he claimed to be. Another practitioner whom the appellant had seen as a having a good reputation in this area had drafted it and, if sued, the appellant could have sought a contribution or indemnity on that account.
[69] Judge Joyce QC also relied on the fact that the appellant was unconvincing in giving his evidence as to his belief of the threat of litigation. The Judge described him as "overly laboured" in his efforts to read threats into letters where there were none. Second, the Judge found the appellant’s file notes on this matter to be "self-serving concoctions." Finally, the Judge took the view that the appellant’s memory on the issue was selective and supported that with examples of his answers in being cross-examined as to the will file.
[70] The appellant takes issue with that assessment of his evidence on this matter and indeed with the Judge’s overall credibility findings, submitting that there is a level of speculation in the Judge’s conclusion that the appellant’s long pauses were due to discomfort in giving evidence. Rather, the pauses could be accountable as memory difficulties given the lapse of time between events and trial. We accept the respondent’s submission that this was one of several examples of instances where the Court concluded that the appellant’s answers damaged his overall credibility. The Judge allowed for the stress of the experience of giving evidence and having done that, made a very clear and reasoned credibility finding against the appellant.
[71] There is no merit in this ground of appeal. The findings made were open on the evidence.

Other matters

[72] The appellant challenges a number of other findings of the Judge. Generally, these findings relate to matters the Crown suggested were indicia of fraud. We deal with these fairly briefly as they all relate to matters of evidence on which the defence case was considered by the Judge. Reasons for not accepting the defence position were given and the findings made were open on the evidence.
[73] The first of these matters is the appellant’s application for a mortgage.
[74] The appellant suggests that the application for a mortgage was justified because of the appellant’s belief, based on advice, that he could charge for negligence matters. In discussing the application for a mortgage, Judge Joyce QC moved on to consider the drawing down of funds after December 2000 and the further drawing down of other funds on 17 April 2001 from which he paid himself another bill.
[75] It is in this context that the Judge concludes at [314], after a review of the advice Mr Watt received, that:

Knowing full well that it was yet another dishonest and wrong thing to do, Mr Watt could not resist collecting more, even although the effect was even more seriously to deplete that which could ever be available from Picton .."

[76] It follows from our earlier conclusions that we accept the respondent’s submission that the inference drawn by the Judge was the logical one, ie, that the action in paying himself from funds obtained by way of loan on the Picton property was a dishonest act.
[77] The second aspect raised by the appellant is the way the Judge dealt with the appellant’s failure to inform the beneficiaries, for example, as to developments with the funds of the estate.
[78] On this matter, the appellant says that he complied with his legal obligations as the Law Society inspectorate found and that his limited reporting was equally consistent with a fear of an antagonistic response. Again, the Judge’s conclusion was open to him, i.e. that Mr Watt did not want the beneficiaries to know the truth and did not want to find himself stopped in his tracks "not even when the money itself had run out and he chose instead to resort behind their backs to the equity in Picton." It is relevant here that the appellant in this respect decided to ignore Mr Gulley’s advice which was that he should tell Mrs Hoare what was happening.
[79] The next aspect referred to is the finding about the appellant’s delay in resigning as trustee. The appellant submits that a process had to be undertaken for resignation and it was properly done. The Judge’s finding on this point is that Mr Watt was simply looking to see how he might not have to resign or, at least, how he might do so on his own terms. Again, as the respondent submits, there was evidence to support the Judge’s finding. Mr Crosby, the solicitor who was seeking the appellant’s resignation, gave evidence of his problems with the appellant avoiding the issue. This is not, in any event, a central aspect of the case.
[80] The final aspect is reputation.
[81] Here the appellant says it is not right for the Judge to have used the positive character evidence from the appellant’s former partners in legal practice against the appellant. If the Judge accepted the evidence of character, as he appeared to, he should also have accepted the evidence of the appellant’s honesty.
[82] In this context, the appellant also submits Judge Joyce QC was unjustifiably dismissive of the defence case that a dishonest man would not have left the paper trail he did.
[83] As to the first matter, it is of course open to the Judge to accept parts of the evidence of a witness and not others. In any event, the Judge’s finding of dishonesty was based on a thorough consideration of the evidence overall.
[84] On the second aspect, the Judge did consider the argument made but, not surprisingly, observed that "those who practice fraudulent conduct tend somehow to be self-convinced that any kind of come-uppance will be avoided." In other words, the Judge was bound to consider this matter – as he did – against the facts of what actually occurred.
[85] There is nothing in any of these matters affecting the Judge’s conclusion or limiting the appellant’s culpability in any way.

Sentence

[86] The appellant accepts that the sentence imposed was within range but submits that if the Court upholds the conviction on the basis of a lesser culpability then the sentence should be reviewed.
[87] The appellant raised in that context the Judge’s finding as to how much of the money charged by the appellant was attributable to fraud. The Judge’s approach was to say that a reasonable fee for Mr Watt’s services would have been $25,000. On that approach, the net loss to the estate was $95,000. In taking that view, Judge Joyce QC rejected the defence submission that he should apply the costs revision decisions in calculating an appropriate fee. The defence relied on s 154 of the Law Practitioners Act 1982 which provides that the decision on a costs revision is "final and conclusive as to the amount due."
[88] There is no basis for a review of the sentence given our approach to the conviction. However, as the matter was dealt with in submissions, we make two comments. The first is that it was open to the Judge to find as he did. Judge Joyce QC rejected the defence approach to the calculation of an appropriate fee because he said it was based on the notion that the two costs revisers had a true appreciation of the totality of what had occurred and they did not. The Judge gives his reasons for that conclusion and refers to the fact he had seen the full picture after a three week trial. Further, the Judge reached the figure of $25,000 by comparison with information from the Crown that the Public Trust would have charged some $18,000 for administration of this estate. Given the differences in scale of the operations, the Judge concluded it would have been appropriate for the appellant to charge the larger figure of $25,000. We add that we do not see that s 154 limited the Court in sentencing.
[89] Second, in any event, in determining the appropriate term of imprisonment the Judge has given a significant credit to the amount available by way of reparation. No more was required.
[90] In these circumstances, there is no basis for interfering with the sentence.

Result

[91] The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	The appellant was convicted after a trial before a Judge alone of one charge of criminal breach of trust.
[2]	The conviction arose from the appellant’s actions as trustee and executor of the estate of Mr Leonard Hoare. Essentially, the appellant billed the estate and paid himself out of estate funds in circumstances where the Judge found he knew he was not entitled to be paid.
[3]	The appellant was sentenced on 12 April 2006 by the trial Judge, Judge Roderick Joyce QC, to a term of 15 months imprisonment. Leave to apply for home detention was granted but the Judge declined to defer the start date of the sentence. A sum of $60,000 was to be paid by the appellant to the current trustee of the estate.
[4]	The appellant appeals against his conviction. He also argues that, if the Court considers his culpability is less than that identified by Judge Joyce QC, there should be a commensurate reduction in sentence.

[7]	The factual background is quite complicated and is discussed in detail in the Judge’s reasons for verdict. The essential features are as follows.
[8]	At the relevant times, the appellant was in legal practice on his own account.
[9]	In June 1994, Mr Leonard Hoare died. He left a will that he had made on 4 February 1988. The appellant, at that time a partner in a law firm, was the solicitor instructed to draft the will although he in fact instructed another solicitor in another firm to do the drafting.
[10]	Mr Hoare’s widow, Valda Hoare, was appointed executrix under the will. The appellant was the executor and sole trustee of the estate. Mr Hoare was survived by his five sons. The sole asset of the estate was the Piha home occupied by Mrs Hoare. She was the deceased’s second wife and was not the mother of any of his children.
[11]	Under the will, the Piha property was given to the appellant on trust to allow Mrs Hoare to occupy it during her lifetime. The appellant, as trustee, was empowered to sell the home and buy another. The will also dealt with the surplus of any sale.
[12]	The remainder of the estate was given to the appellant upon trust to pay funeral expenses and other debts with the balance held on trust for Mr Hoare’s children. There was a fairly standard charging clause in the will enabling the recovery of costs by the executor or trustee incurred in relation to the administration of the estate.
[13]	After obtaining probate and transmission of the title to the Piha home, the appellant sent an invoice to Mrs Hoare for $5,804.75 for his costs. Mrs Hoare complained to the Auckland District Law Society about the bill although, after the appellant gave her details about his calculations, she ultimately paid the bill and the costs revision did not proceed.
[14]	The next development was Mrs Hoare’s decision in mid-July 1997 to sell the Piha house and buy another place in Picton. After receiving this request, the appellant took advice from another solicitor, Mr Gulley. Mr Gulley’s advice was to feature in what followed.
[15]	Mr Hoare’s sons were not in favour of a sale of the Piha property. On 23 July 1997, two of them wrote to the appellant seeking a copy of the trust deed and the annual accounts. The letter said "We do not believe that you have carried out your obligations and duties fully, thus we would appreciate your full co-operation in haste."
[16]	There was then some correspondence with Mrs Hoare and the appellant had a discussion with one of the sons.
[17]	The next step was a letter of September 1997 to the appellant from a Mr Kennedy, a lawyer who had been instructed by some of the sons. Mr Kennedy was critical of the drafting of the will and sought advice about the assets of the estate and accounts rendered. The appellant ultimately replied to that letter in mid-October.
[18]	On 17 November 1997, the appellant completed a bill for $11,500 plus GST covering the period from July to October 1997. A further bill of $4,950 plus GST was rendered for work over November 1997.
[19]	The Piha property was sold with settlement in January 1998. In the course of the sale process, Mr Watt again took advice from Mr Gulley. The sale price was $347,500. The property was mortgage free. A home in Picton was purchased for Mrs Hoare later in 1998. That property cost $212,000 and the balance of the funds were lodged by the appellant with the ASB, although the direction in the will was to use the BNZ.
[20]	Mr Kennedy had, in the meantime, in January 1998 written briefly reiterating his earlier views and seeking the appellant’s comments. Having taken advice from Mr Gulley, the appellant wrote to Mr Kennedy on 10 February 1998 rejecting Mr Kennedy’s argument. Mr Gulley rendered an account for his attendances as at mid-February and Mr Watt paid that from the Piha sale proceeds.
[21]	On 11 March 1998, the appellant rendered another account, this time for $8,150 plus GST. Like others before the available funds were exhausted, it was paid from the surplus on the Piha sale. There was a further bill at the end of March for $4,375.00 plus GST. Other bills followed.
[22]	The sons, through Mr Kennedy, requested the Law Society to conduct a costs review. The result of the review, which took place in December 1998, was that the invoices which by that point totalled $43,050 were reduced to $34,750.
[23]	Over 1998, 1999 and 2000, there was correspondence between the appellant and Mr Piggin, another solicitor from whom the appellant took advice over the will, its meaning and other matters. Accounts were also incurred with Mr Piggin.
[24]	By December 1998, the estate no longer had any surplus funds. The funds had been spent principally in legal costs for the appellant, some for Messrs Piggin and Gulley and some other estate outgoings.
[25]	In February 1999, Mrs Hoare swore an affidavit prepared by the appellant with the assistance of Mr Piggin. The appellant said this was in anticipation of legal proceedings against the estate.
[26]	There was a further bill of $10,175 exclusive of GST for June 1998; another in August 1998 for $4,625 exclusive of GST; and accounts in October for $4,425 and $2,000. A bill (number 960) for $11,800 plus GST was rendered in December 1998.
[27]	A complaint was lodged by Mr Kennedy on behalf of the sons in October 1999 with the Auckland District Law Society. The Society decided to take no action on the matter, advising that civil proceedings were the most appropriate course.
[28]	The next step was Mrs Hoare’s decision, in April 2000, to move from Picton to Hamilton necessitating the sale of the Picton house. The Picton sale took some time.
[29]	As there were no funds left in the estate, in late 2000, the appellant arranged for a mortgage to be registered against the Picton property. He then drew down funds in December 2000 and paid outstanding invoices, $25,000 of which was for his bills. Further funds ($11,175.01) were drawn down in February for a bill for the September to December 2000 period.
[30]	It was not until March 2001 that the appellant told Mrs Hoare that there were no remaining funds and there was a mortgage liability. Mrs Hoare then took advice from Gascoigne Wicks and correspondence between that firm and the appellant followed.
[31]	Mr Watt resigned as trustee in June 2001.
[32]	Gascoigne Wicks complained to the Law Society about the appellant and the Law Society’s inspector undertook an inspection in March. At the suggestion of the inspector, the appellant sought a revision of his costs which was undertaken in 2004. Fees of $71,550 were reduced to $54,465.
[33]	Following a complaint to Police by one of the sons in April 2001, the appellant was charged in May 2004.

[35]	The appellant’s challenge under this head is to Judge Joyce QC’s finding at [246] that by the end of November 2000, Mr Watt:
	knew and in fact had always known that cost revisions .. had to be his own to bear;
	knew that in that respect the advice of Messrs Gulley and Piggin had ultimately, and effectively enough, coincided;
	knew that advice was consistent with the instruction of the Law Society on the topic; and
	when giving evidence he did not in any kind of even possibly persuasive way identify any good reason to ignore what he had learned and been told.
[36]	Accordingly, the Judge concluded that there was no place for any "rational" conclusion except to find that Mr Watt, as at 22 December 2000, "consciously and knowledgeably" made sure he was paid for the time he had spent or which he had recorded as spent in dealing with the 1998 costs revision. In doing so, the Judge concluded he acted dishonestly. We note here that the Judge did not find the appellant culpable in respect of payment of the accounts of Messrs Gulley and Piggin.
[37]	The focus as the argument developed on this point is on invoice number 960. Invoice number 960 was for $11,250 plus GST making a total of $12,656.25. This bill was paid in part (some $5,239.44) on the day it was rendered, that is, on 17 December 1998. It covered the period of November 1998, namely, the month before the costs revision hearing on 10 December 1998.
[38]	As we have noted, in late 2000, the appellant arranged an Orbit loan, to the value of $60,000 secured against the estate’s Picton property in which Mrs Hoare was living. The appellant drew down $40,000 from that loan on 22 December 2000 and paid himself approximately $25,000 including payment of bill number 960 in full. In fact, that was an overpayment because the bill was already part paid but it is accepted that that was a mistake and not fraudulent. The important date is then the 22 December 2000.
[39]	On appeal, the appellant says that some of the work giving rise to invoice number 960 related to the negligence claim the appellant believed the sons were planning to bring against him. He believed he was entitled to charge for that work. It is further submitted that it was not open to the Judge to say that the appellant had not simply overlooked, at the time of payment in December 2000, the need to make some distinction between costs revision and negligence matters. The appellant says he was not conscious of the content of his account.
[40]	The appellant acknowledged at trial that he could not charge for costs revision matters. The expert evidence on behalf of both the appellant and the respondent supported that. Further, as the Judge noted, the appellant did not charge the estate for the costs revision Mrs Hoare said she was going to bring in relation to the first bill. The appellant accepts that a part of invoice number 960 was a charge for costs revision matters. He also accepts he knew he could not charge for that but his argument now is that it is not clear on the evidence what the split was as between costs revision and other matters.
[41]	Given that the appellant accepts that part of the bill was for matters for which he could not charge the estate and that he knew he could not charge, there was a basis for the Judge to find that in paying himself in this way he did so dishonestly. That must be so unless the Judge had to accept the explanation that the appellant in December simply overlooked making an adjustment to the bill. Subject to that argument, to which we return, at most, the appellant’s case now is relevant only to the extent of his culpability and therefore to sentence. It is apparent, in any event, from a consideration of the Judge’s reasoning leading up to the conclusions which are challenged, that it was plainly open to the Judge to find as he did. On that basis, there is no ground for a challenge to the conviction or to the Judge’s assessment of culpability.
[42]	The first step in the Judge’s reasoning was his acceptance that the bill was substantially about costs revision: "Principally", the Judge said, involving "numerous backs and forths" between the appellant and Mr Piggin.
[43]	This finding reflected the Crown case which was that bill number 960 was almost entirely costs revision related and that by the time the appellant paid the bill on 22 December 2000 he knew that and knew he could not pay it. The split between costs revision and other matters was not a particular focus at trial. The focus was rather more on whether the Judge was properly able to conclude that the appellant did not honestly believe that the costs revision was about negligence matters for which he could charge.
[44]	There was evidence to support the Judge’s conclusion that the bill was substantially about costs revision matters. That is apparent on the face of the bill, and is supported by the decision of the costs reviser. In the November 2004 costs revision decision, the reviewer said that some 418 of the 472 recorded units were spent on drafting briefs and conferring with Mr Piggin. Further, as the Judge said, the 472 units covered by the bill purported to relate to some 48 hours work. But, the Judge said, on an examination of the exhibits and the evidence there was "nothing like matching substance". The Judge made the point that all that was happening in the estate itself at that time was that Mrs Hoare was now settled in the Picton house.
[45]	Further, as the Judge found, Mr Piggin’s evidence was that his involvement in respect of the December 1998 costs revision was to defend the bill of costs. The Judge at [232] concluded:

[46]	The Judge also relied in this respect on the appellant’s statement to the Police where the appellant had explained that the reviser had told Mr Kennedy that the costs revision was not the place to have a lot of questions and answers about the negligence issue. The reviser, Mr Watt said, told Mr Kennedy he would have to confine himself to matters relating to costs revision.
[47]	Accordingly, it was appropriate for the Judge to proceed on the basis that invoice number 960 was almost substantially about the costs revision.
[48]	The second step in the Judge’s reasoning is his rejection of the appellant’s claim that the "dimming of memory" had removed "consciousness of content". The Judge said he was unable to accept this because, in part, the evidence suggested that the appellant was not one to overlook matters. The Judge also relied in this respect on the evidence of the appellant’s former partners as to his meticulous attention to detail and, as well, on the detail in his own billing narratives.
[49]	The Judge also emphasised the early focus by the appellant on who would pay these costs. For example, as early as 26 June 1998, the appellant had written to Mr Piggin to say that he was "minded" that his costs for counsel at any revision plus the costs of calling Mr Gulley as an expert witness should be paid by the estate. Later, on 29 October 1998, he asked Mr Piggin whether his (Mr Piggin’s) costs and the appellant’s own costs associated with the revision were payable by the estate. Mr Piggin did not respond to that, because, as Mr Piggin told the Court, Mr Watt later said Mr Gulley was advising him on that issue. It was, in these circumstances, a rational conclusion to find that the appellant would not simply have just overlooked the content of the bill.
[50]	A third step in the Judge’s reasoning focuses on the advice given to the appellant by Messrs Piggin and Gulley as to what matters were properly charged to the estate.
[51]	In a file note of 27 July 2000 recording a discussion with Mr Gulley, Mr Watt recorded:

[52]	The file note went on to record Mr Watt’s view that at the costs revision Mr Kennedy was fixated upon the idea that the will was prepared negligently and that Mr Watt had been a bad trustee. The appellant recorded that this had all been shown to be untrue and "therefore" Mr Gulley "thinks that my bill should be paid, although it is possible that some percentage of it which is not to be properly payable by the estate." He said that Mr Gulley was going to consider this and let him know.
[53]	The Judge saw this as an overstatement of Mr Gulley’s position "decidedly advantageous" to the appellant.
[54]	There was then a letter from Mr Watt to Mr Gulley asking about the amount or percentage of appropriate reimbursement for the estate once the house was sold. As the Judge observed, at about this point, Mr Gulley seemed to have the idea that where matters were not properly to be raised at a costs revision and intruded on that costs revision, they could conceivably be charged for. Subsequently, on 2 August 2000, Mr Gulley provided a much firmer statement about what Mr Watt could or could not do. Mr Gulley advised the appellant, in light of a recent experience he had had with the Auckland District Law Society, that a practitioner could not charge for work involved in "collating information and data which the Society requires after it has received a request for costs revision, for preparation for a costs revision hearing, or for attending at a costs revision hearing."
[55]	As the Judge said, the appellant’s focus appears to have been on the latter part of the advice from Mr Gulley which was that in the absence of a successful proceeding establishing negligence, he was entitled to charge for all of his time dealing with issues other than those relating to the costs revision process. Mr Gulley continued:

[56]	It is at this point that the Judge finds that in what he did the appellant created an "artifice" to enable himself to be paid for everything and, if questioned, fall back on the advice he had from Mr Gulley.
[57]	Leaving that finding to one side at the present, the next item of correspondence that should be referred to is Mr Watt’s fax to Mr Piggin of 28 September 2000 where he suggested that his purpose for instructing Mr Piggin to attend on the revision was "primarily" to protect himself as a trustee in relation to the allegations as to negligence. In the last paragraph, the appellant wrote that it sounded as though Mr Gulley and Mr Piggin may not be in agreement and he sought Mr Piggin’s opinion as to what a prudent trustee should do concerning counsel’s bills and his own bills of cost.
[58]	Mr Gulley’s letter of 12 October 2000 to Mr Watt did caution against "carte blanche" charging against the estate although reiterating the advice as to the ability to charge for negligence matters.
[59]	On 22 November 2000 Mr Piggin responded to Mr Watt and in his covering letter made it plain that Mr Watt’s attendances in responding to Mr Kennedy’s allegation as to the drawing of the will and the related complaint to the Law Society were not chargeable to the estate.
[60]	The appellant said he did not get this letter. The Judge saw that position as "all together too convenient" given the otherwise distinctly complete set of files. In any event, the Judge pointed to evidence that there was other material on the file making it plain that Mr Watt must have known that the proper position was as Mr Piggin’s note put it. An example of this was Mr Watt’s fax to Mr Piggin of 6 November 2000 where he noted Mr Gulley’s advice that he should not charge at the present time for anything related to negligence allegations against him. The appellant said that Mr Piggin did not have to reply to that letter because he would just delete the matters in question from the bill of costs and issue it.
[61]	On this, Mr Piggin’s evidence was that the 6 November 2000 fax followed on from a conversation he had with Mr Watt from which he clearly understood that all negligence attendances were to be taken out.
[62]	It is plain then that there was a proper evidential basis for the Judge’s conclusion on this matter. There is nothing that can be said to have led to an unreasonable or irrational finding.

[64]	In challenging this finding, the appellant refers to the evidence that Mr Watt considered he was under threat and to the objective indications that the threat was real. For example, Mr Hoare’s sons had instructed Mr Kennedy who did write in a critical way on a number of occasions to Mr Watt. The appellant also points out that there was a complaint to the Police in the early stage of 1998. There was a costs revision and the reviewer at the revision referred to signs of "some unpleasantness or aggravation" between the sons and the appellant. The evidence also showed the sons had considered civil proceedings which were not pursued because they would have been too expensive. In addition, there was the complaint to the Law Society and, ultimately, the appellant was sued by Mrs Hoare in 2001.
[65]	We agree with the respondent that these are matters which were raised at trial and were dismissed by the Judge. A consideration of the Judge’s reasoning shows there is an evidential basis for the finding. Accordingly, while we accept there were some indications to support the view the threat was not completely unreal the Judge’s findings were open to him. In any event, on our analysis, this aspect is not central as it was open to the Judge to conclude that the appellant knew he could not charge for costs revision matters and in doing so acted dishonestly.
[66]	The Judge in rejecting this claim accepted that Mr Watt had been warned by Mr Hoare to "expect trouble" from the sons. The Judge accepted also that exercising itself in the appellant’s mind was the notion of some animus on the sons’ part towards Mrs Hoare. The Judge said that having heard the evidence of several of the sons, his impression - which he described as "crystal clear" - was that the sons were generally very well disposed to Mrs Hoare and had always been. The Judge was conscious, he said, that the sons and Mrs Hoare might now prove to be acting in a common cause. The Judge also said that he had taken into account an earlier notion that the sons might be "intent on some kind of vendetta." Despite having those cautions in mind, the Judge concluded that none of the sons gave any indication that for the purpose of the trial he was suppressing or denying any actual earlier animus towards Mrs Hoare.
[67]	The Judge also relied on Mr Watt’s statement to the Police. In that statement Mr Watt acknowledged that Mr Kennedy had never written saying "we are going to sue you for negligence". Rather, he relied on the tone of his letters and the letter Mr Kennedy sent to the Law Society. Against that, the Judge pointed out that little at all over the relevant timeframe was actually heard from Mr Kennedy. We add that Mr Gorringe explained that the negligence alleged in relation to the estate related to selling the Piha property without having another property lined up to purchase in its place. That is hardly a basis for the activity and costs said to flow from this concern.
[68]	The Judge had real difficulty in seeing how even the appellant could have been as truly worried about the will drafting as he claimed to be. Another practitioner whom the appellant had seen as a having a good reputation in this area had drafted it and, if sued, the appellant could have sought a contribution or indemnity on that account.
[69]	Judge Joyce QC also relied on the fact that the appellant was unconvincing in giving his evidence as to his belief of the threat of litigation. The Judge described him as "overly laboured" in his efforts to read threats into letters where there were none. Second, the Judge found the appellant’s file notes on this matter to be "self-serving concoctions." Finally, the Judge took the view that the appellant’s memory on the issue was selective and supported that with examples of his answers in being cross-examined as to the will file.
[70]	The appellant takes issue with that assessment of his evidence on this matter and indeed with the Judge’s overall credibility findings, submitting that there is a level of speculation in the Judge’s conclusion that the appellant’s long pauses were due to discomfort in giving evidence. Rather, the pauses could be accountable as memory difficulties given the lapse of time between events and trial. We accept the respondent’s submission that this was one of several examples of instances where the Court concluded that the appellant’s answers damaged his overall credibility. The Judge allowed for the stress of the experience of giving evidence and having done that, made a very clear and reasoned credibility finding against the appellant.
[71]	There is no merit in this ground of appeal. The findings made were open on the evidence.

[72]	The appellant challenges a number of other findings of the Judge. Generally, these findings relate to matters the Crown suggested were indicia of fraud. We deal with these fairly briefly as they all relate to matters of evidence on which the defence case was considered by the Judge. Reasons for not accepting the defence position were given and the findings made were open on the evidence.
[73]	The first of these matters is the appellant’s application for a mortgage.
[74]	The appellant suggests that the application for a mortgage was justified because of the appellant’s belief, based on advice, that he could charge for negligence matters. In discussing the application for a mortgage, Judge Joyce QC moved on to consider the drawing down of funds after December 2000 and the further drawing down of other funds on 17 April 2001 from which he paid himself another bill.
[75]	It is in this context that the Judge concludes at [314], after a review of the advice Mr Watt received, that:

[76]	It follows from our earlier conclusions that we accept the respondent’s submission that the inference drawn by the Judge was the logical one, ie, that the action in paying himself from funds obtained by way of loan on the Picton property was a dishonest act.
[77]	The second aspect raised by the appellant is the way the Judge dealt with the appellant’s failure to inform the beneficiaries, for example, as to developments with the funds of the estate.
[78]	On this matter, the appellant says that he complied with his legal obligations as the Law Society inspectorate found and that his limited reporting was equally consistent with a fear of an antagonistic response. Again, the Judge’s conclusion was open to him, i.e. that Mr Watt did not want the beneficiaries to know the truth and did not want to find himself stopped in his tracks "not even when the money itself had run out and he chose instead to resort behind their backs to the equity in Picton." It is relevant here that the appellant in this respect decided to ignore Mr Gulley’s advice which was that he should tell Mrs Hoare what was happening.
[79]	The next aspect referred to is the finding about the appellant’s delay in resigning as trustee. The appellant submits that a process had to be undertaken for resignation and it was properly done. The Judge’s finding on this point is that Mr Watt was simply looking to see how he might not have to resign or, at least, how he might do so on his own terms. Again, as the respondent submits, there was evidence to support the Judge’s finding. Mr Crosby, the solicitor who was seeking the appellant’s resignation, gave evidence of his problems with the appellant avoiding the issue. This is not, in any event, a central aspect of the case.
[80]	The final aspect is reputation.
[81]	Here the appellant says it is not right for the Judge to have used the positive character evidence from the appellant’s former partners in legal practice against the appellant. If the Judge accepted the evidence of character, as he appeared to, he should also have accepted the evidence of the appellant’s honesty.
[82]	In this context, the appellant also submits Judge Joyce QC was unjustifiably dismissive of the defence case that a dishonest man would not have left the paper trail he did.
[83]	As to the first matter, it is of course open to the Judge to accept parts of the evidence of a witness and not others. In any event, the Judge’s finding of dishonesty was based on a thorough consideration of the evidence overall.
[84]	On the second aspect, the Judge did consider the argument made but, not surprisingly, observed that "those who practice fraudulent conduct tend somehow to be self-convinced that any kind of come-uppance will be avoided." In other words, the Judge was bound to consider this matter – as he did – against the facts of what actually occurred.
[85]	There is nothing in any of these matters affecting the Judge’s conclusion or limiting the appellant’s culpability in any way.

[86]	The appellant accepts that the sentence imposed was within range but submits that if the Court upholds the conviction on the basis of a lesser culpability then the sentence should be reviewed.
[87]	The appellant raised in that context the Judge’s finding as to how much of the money charged by the appellant was attributable to fraud. The Judge’s approach was to say that a reasonable fee for Mr Watt’s services would have been $25,000. On that approach, the net loss to the estate was $95,000. In taking that view, Judge Joyce QC rejected the defence submission that he should apply the costs revision decisions in calculating an appropriate fee. The defence relied on s 154 of the Law Practitioners Act 1982 which provides that the decision on a costs revision is "final and conclusive as to the amount due."
[88]	There is no basis for a review of the sentence given our approach to the conviction. However, as the matter was dealt with in submissions, we make two comments. The first is that it was open to the Judge to find as he did. Judge Joyce QC rejected the defence approach to the calculation of an appropriate fee because he said it was based on the notion that the two costs revisers had a true appreciation of the totality of what had occurred and they did not. The Judge gives his reasons for that conclusion and refers to the fact he had seen the full picture after a three week trial. Further, the Judge reached the figure of $25,000 by comparison with information from the Crown that the Public Trust would have charged some $18,000 for administration of this estate. Given the differences in scale of the operations, the Judge concluded it would have been appropriate for the appellant to charge the larger figure of $25,000. We add that we do not see that s 154 limited the Court in sentencing.
[89]	Second, in any event, in determining the appropriate term of imprisonment the Judge has given a significant credit to the amount available by way of reparation. No more was required.
[90]	In these circumstances, there is no basis for interfering with the sentence.