Case No: 2011/0695/B1
Neutral Citation Number: [2011] EWCA Crim 3166
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 10 November 2011
 
B e f o r e:
 
LORD JUSTICE MOSES 
MR JUSTICE WALKER 
MR JUSTICE SINGH 
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R E G I N A 

v 

SIMON MORGAN
 
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Mr S Myerson QC appeared on behalf of the Appellant 
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J U D G M E N T 

1.	LORD JUSTICE MOSES:  This is an appeal against sentence of seven years imposed against a solicitor who took, over a substantial period, very large sums from his firm and from his clients.  It is, fortunately, a highly unusual case because this was a 50‑year‑old solicitor, a senior partner in a highly respected firm, Milners in Leeds, whose work attracted a high reputation and who was undoubtedly a hard working solicitor in an important field, namely personal injury work.  But in circumstances that we described in a previous judgment, although Walker J was not part of that court last week, over a very considerable period between 2002 and 2004 he was found guilty of taking substantial amounts of money, something in the region of £1.36 million, amongst which was £676,000 as a shortfall in the client account, although there was some dispute as to precisely how much was in fact missing.  But undoubtedly money was taken out of client accounts, although there was evidence that the appellant believed that most, if not all of the money that he took came out of the office account.  He was stealing from the partnership in which there were two other partners who had joined later.  
2.	It is not just the period over which this occurred which is serious but the amounts at stake, but also on what they were spent: an extremely lavish lifestyle, amongst which were the purchase of luxury motorcars, and the hire of a private jet, extravagant holidays and a large house with lavish fittings.  
3.	He said, and it appears to have been accepted, that the trigger for this behaviour was his wife who set up the systems whilst working in the accounts of the firm which enabled these very large sums to be taken.  That being accepted, the judge was right to observe, and we observe, that the responsibility and the prime responsibility must lay upon a professional man, a solicitor, whose behaviour, particularly in relation to money and the way the firm is run, must be above all suspicion.  His responsibility was to refuse to take part in anything that his wife proposed, to make sure that he knew what was going on if she started these methods by which the money could be taken and to ensure that the reputation of the solicitors' profession remained unsullied.  In all of those respects he, for the purposes of his own greed, failed dismally.  
4.	It is therefore no surprise and indeed in skilful and forceful submissions Mr Myerson QC, to whom we are indebted, does not dispute that the starting point for an offence such as this, whilst it does not come particularly within the sentencing for fraud statutory offences definitive guideline, would be commensurate with large scale advance fee or other confidence fraud and thus six years' custody with a range of five to eight and we agree.  
5.	The real issue in this appeal is to how much mitigation there was.  There was of course the fact that the idea appears to have been planted by his wife, although that, having regard to their different responsibilities and different professional qualifications, is small mitigation.  But nevertheless she originally was not charged because it was found that she was hardly able, due to a condition from which she suffered, to follow what was going on, to follow the proceedings sufficiently even to be joined in them.  The prosecution then changed their mind causing substantial delay but when she was joined it was accepted once the prosecution had obtained psychiatric evidence, that she was unfit to plead, and, subsequently, although she played no part in the proceedings she admitted everything that had gone on and somewhat curiously ended up with an absolute discharge.  We do not in the end find that sufficient mitigation to suggest that the judge's approach was wrong.  
6.	The next substantial point of mitigation is the behaviour of this appellant once matters came to light.  He behaved in a thoroughly responsible way, sold as quickly as possible the substantial house he had bought from his ill‑gotten gains, so that the client account could be replenished with £676,000 within a period of three weeks.  All the money has been paid back and we regard that as substantial mitigation because it has meant that without intervention Milners has been able to operate, with most of their employees continuing to work and although the other partners suffered the anxiety and humiliation of challenge by way of cross‑examination and attack, and anxiety as to whether they were going to be able to continue to operate, nevertheless they are now able to pursue their vocation.  All of that in our view is substantial mitigation and the question is whether the judge sufficiently gave account for that in his sentencing remarks and in the sentence that he passed of seven years.  
7.	It is right that the judge made no specific reference to the fact that the money had been paid back and he ought to have done so, but having regard to the mitigation he can hardly have been ignorant of that when it came to fixing upon the period of seven years.  This was a harsh sentence.  In our view it was rightly a harsh sentence having regard to the gravity of this persistent offending, the amounts at stake and the nature of the profession which this appellant pursued.  We think that even giving full weight to that substantial mitigation advanced so well by Mr Myerson, nonetheless it is impossible to say that the sentence was manifestly excessive and in those circumstances the appeal is dismissed.