A white-collar criminal who swindled millions from beneficiaries of a Canberra trust company looks likely to have his lengthy jail sentence cut on appeal.
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Three appeal court judges have indicated they will resentence Peter Daniels Clarke II, and must now consider the appropriate sentence for the one-time international fugitive.
Clarke, a former corporate high-flyer and Harvard dropout, is serving a sentence of 12 years after pleading guilty to five fraud-related offences. Taking into account time served, he will be eligible for parole in April 2016, after which point it is anticipated the dual British and US citizen will be deported.
But lawyers for the fugitive fraudster, who spent a decade on the lam after skipping bail the day before he was due to be sentenced in June 2000, have asked the ACT Court of Appeal to shorten the jail term. And counsel for the Commonwealth Director of Public Prosecutions, Sydney silk Peter Hastings, QC, conceded yesterday it was open for the judges to find retired sentencing judge, Former Justice John Gallop, made a mistake when constructing the punishment.
Justice Gallop was already on the cusp of territory judges' statutory retirement age of 70 in 2000 when Clarke vanished. He resurfaced 10 years later in Germany, where he was arrested by Interpol.
At the time he was battling prescription drug addiction, living in a London flat and subsisting on social welfare payments.
In the early 1990s, as managing director for Burns Philp Trustee Company (Canberra), Clarke stole more than $4million from beneficiaries.
Some of the money disappeared into Clarke's own pocket; some was spent trying to prop up the ailing company, then hemorrhaging money.
The legal arguments at the heart of the appeal deal with the way Justice Gallop, who returned to sentence Clarke, constructed the sentence.
The veteran judge sentenced the man to three years on each of the five charges, with one of the three-year terms running consecutive with another for a total of 12 years.
Mr Hastings conceded the court could find Justice Gallop should have paid more consideration to the individual culpability of each offence.
Clarke's barrister, Shane Gill, argued the sentencing judge should have distinguished between crimes where the money wound up in his client's pocket and those where the embezzled funds went towards propping up the ailing business.
The court heard Justice Gallop also should have given more thought to overlapping some of the sentences upon others to reflect linked criminality.
Clarke's partner-in-crime, Richard James Drummond, was given weekend jail and a suspended sentence in October 1998 for his role in the rort.
Mr Gill submitted while Drummond's conduct was less serious than Clarke's, his client's sentence should nevertheless be reduced to reflect parity with his co-offender.
The Crown suggested the total sentence should be somewhere between the 12-years imposed by Justice Gallop and five years at the minimum.