Unlike some others I have taken some time to read and consider to consider the Einfeld judgment.
Justice James has written a careful and considered judgment and at first sight the penalties imposed are within the discretion that a sentencing Judge would ordinarily have.
Nevertheless I consider that he fell into error of law in at least two fairly obvious respects. I do not want to say what they are as I do not want to pre-empt in anyway those who may represent Einfeld in any appeals he may make.
As there are, in my opinion, errors of law it would ordinarily fall to the Court of Criminal Appeal to re-sentence him.
It seems by no means clear to me that a sentence of full time imprisonment is necessary. The Judge seems not to have given any reason for his view other, in the end, than his internal estimation of the value of events and in many cases that may be expected.
There is, it seems to me, a prospect in re-sentencing of a length of sentence being fixed which would bring the sentences into the class which did not mandate full time custody. Nor should a part monetary penalty be excluded though I have not checked the technical postion on this.
Also as a generality the sorts of penalties imposed on lawyers, who falsify documents and tell lies, in the professional discipline area, have not been considered.
I have been in practice for decades as a lawyer, mostly as a barrister. I am acquainted with Marcus Einfeld distantly. I have never been an admirer of his. But it is time that someone spoke out for justice.
I regard the agitations which have broken out concerning his disbarment as ill-judged . In particular I find the actions of the NSW Bar Council as premature to say the least.
When the formal evidence of his convictions is produced to the relevant authorities there was never any doubt as to what was to happen to him.
Gentlemanly decency indicated waiting till that time.
So far as his pension is concerned that is a constitutional matter. Pensions are there to secure the long term probity of judges. Its continuance rests on that basis. Nothing else.
See: http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2009/119.html